Former Guantánamo Prisoner Who Alleged US Torture, Drugging, Sentenced by Algerian Authorities

Originally posted at Truthout

The UK action charity Reprieve, whose attorneys represent over a dozen prisoners at Guantánamo Bay, reports that former Guantánamo prisoner, Algerian citizen Abdul Aziz Naji, has been sentenced to three years in prison in Algeria. Reprieve says the charges were "of past membership in an extremist group overseas - a charge derived from the unsubstantiated accusations the US administration made against him in 2002."

News reports state that prosecutors initially had asked for a ten-year prison sentence, and a 5,000 euro fine (over $6,000 US dollars).

The Reprieve press release states, "During his trial held in Algiers on Monday 16 January, the prosecutor presented no evidence of Mr Naji's guilt - rather, the judge simply questioned him and produced a guilty verdict. His lawyer, Hassiba Boumerdassi, filed an appeal of his sentence and will request that he be released on bail pending retrial."

When Naji was first forcibly returned to Algeria in 2010 - the first Guantánamo detainee removed to a country where he refused to go, for fear of returning there - he was, according to the Jurist, held initially "under a [Algerian] statute that allows for the detention of terror suspects for up to 12 days." The charges under which he was held were never clarified at the time, but presumably were similar or the same for which he was recently sentenced.

Naji was subsequently released in July 2010 under judicial supervision, with the proviso he report to police authorities weekly. At the time, a statement by Algiers prosecutors,reported by Reuters Africa, bragged that Naji's case had been "dealt with in the most complete transparency and in respect for the law, whether in terms of procedure or the length of his detention."

Naji had been forcibly deported from Guantánamo to Algeria with the full knowledge and approval of Congress, which, at that time, had demanded 15 days advance notice of any Guantánamo transfer. Naji had previously stated he feared any return to Algeria, where he anticipated either repression by the government or by Islamic extremists. His forcible return, the first such non-voluntary expulsion of any Guantánamo prisoner, violated the principle of non-refoulement or non-return of prisoners to states where they have reason to expect torture or other mistreatment. The principle is part of the United Nations Convention Against Torture treaty, to which the US is a signatory.

The Obama administration, like the Bush administration before it, relies on diplomatic "assurances" by host countries that they will not maltreat returning prisoners. But a 2007 report by Human Rights Watch described the problems with such "assurances": "Governments that engage in torture routinely deny it and refuse to investigate allegations of torture. A government that is already violating its international obligation not to torture cannot be trusted to abide by a further 'assurance' that it will not torture."

In the case of Algeria, the 2010 State Department report on human rights in that country notes that, while torture is formally illegal in Algeria, there have been numerous charges of torture by state police. Furthermore, the Algerian government obstructs oversight on such matters by non-governmental and UN agencies. The report describes abuse of prisoners in order to obtain confessions. While some government agents have been tried and convicted for such abuse, the State Department reports notes, dryly, that in regards to abuse by state officials, "impunity remains a problem." Even more, local Algerian human rights attorneys have said that prisoner abuse occurs "most often against those arrested on 'security grounds.'"

In regards to prison and detention conditions, the report states, "Prison conditions generally did not meet international standards, and the government did not permit visits to military, high-security, or standard prison facilities or to detention centers by independent human rights observers."

Revelations About Drugging of Detainees, Torture for False Confessions

Since his release, Naji has been vocal about the treatment he endured in US custody. in a July 28, 2010, interview with the Algerian paper El Khabar, only days after his forcible transfer, Naji told the world about maltreatment at the hands of the Americans. He charged Guantánamo authorities with using torture to make detainees confess to terror charges.

"They force detainees to take some medicines for three months to drive them crazy, loosing memory and committing suicide," he said, adding, "I still remember how a Yemeni prisoner killed himself for he couldn't resist to torture and sexual abuse practiced by the prison caretakers." Two of the six purported Guantánamo suicides were Yemeni, Ali Abdullah Ahmed (also known as Salah al-Aslami) and Mohammed Salih al-Hanashi, but it is not clear to which prisoner Naji is referring.

Charges of drugging prisoners have been widespread, but have been difficult to verify. (See this April 2008 report by Joby Warrick at The Washington Post.) A Pentgon inspector general investigation on such drugging was completed in 2009, Titled "Investigation of Allegations of the Use of Mind Altering Drugs to Facilitate Interrogations of Detainees," the report remains classified. A Freedom of Information Act request by this author for the report is now 16 months old. Last September, a Senate Armed Forces Committee spokesperson told Truthout the Office of Inspector General's investigation did not substantiate allegations of drugging of prisoners for the "purposes of interrogation."

The involuntary use of drugs on prisoners would violate a number of domestic and international laws, as well as basic ethical codes of the medical professions. Yet, under the guidelines of the current "Army Field Manual" (AFM), whose protocols govern all interrogations past and present at Guantánamo, only drugs that cause permanent, lasting harm are not allowable for interrogation use. The provision from an earlier version of the AFM that forbid use of drugs that could create a "chemically induced psychosis" was dropped from the manual in September 2006, or even earlier.

Naji also told El Khabar "about how some detainees had been promised to be granted political asylum opportunity in exchange of a 'spying role' within the detention camp. He added that once released, they are maintained as spies serving for the US, under the cover of political refugees."

The use of spies recruited by the Americans from among Muslim detainees and suspects has been reported in numerous instances. Abdurahman Khadr, the brother of Guantánamo prisoner, Omar Khadr, was an admitted "asset" for the CIA, who once describedhow he was sent to Guantánamo as a fake prisoner to spy.

More recently, the Tarek Mehanna case raised a good deal of controversy with charges from Mehanna and supporters that he was targeted by the FBI because the 29-year-old Sudbury, Massachusetts, man repeatedly refused to become an informant.

The "Case" Against Abdul Aziz Naji

No public report has indicated to what "extremist group" Naji is accused of belonging. In the May 2008 Joint Task Force-Guantánamo Detainee Assessment leaked by WikiLeaks last year, US intelligence maintained that Naji had belonged to the Pakistani-based group Lashkar-e-Tayyiba. It also accused him of being "an identified al-Qaida courier." The bulk of the accusations against him were levied by torture victim Abu Zubaydah, who supposedly said he had recruited Naji to be part of his "Martyrs Brigade." Another torture victim, and one who the US relied upon to place Naji in Afghanistan, was Abd al-Rahim Abdul Razzak Janko, who was arrested by the Americans even though he had been tortured by the Taliban.

Abu Zubaydah was infamously tortured by the CIA, including being waterboarded 83 times, held in stress positions, had his head banged against a wall, suffered sleep deprivation and isolation. Mr. Zubaydah was flown from one CIA black site prison to another in the four or so years he was held in CIA captivity. Under later Department of Defense detention, it is not known exactly what ill treatment he may have endured, though it is known he is held in solitary confinement, and like the other Guantánamo detainees, is subject to interrogations under the current AFM. The manual has a special appendix known by the letter M that describes special interrogation techniques that cannot be used on regular prisoners of war. All told, AFM techniques used on Mr. Zubaydah could include, besides solitary confinement, modified forms of sleep deprivation, modified sensory deprivation or overload, stress positions, use of drugs and interrogation approaches meant to generate fear and humiliation.

Mr. Janko, who was released from Guantánamo in 2009, had provided supposedly incriminating information about approximately 20 other detainees, coerced from him via torture. After arrest and torture by the Taliban in 2000 for alleged sexual and espionage crimes, Mr. Janko was arrested by the US after 9/11 and was tortured from his first days while incarcerated at Kandahar Air Base. While the Taliban had used electric shock, stress positions, beatings on the soles of his feet (falaka) and water torture, to get Mr. Janko to falsely confess to sexual crimes and being an American and Israeli spy, the US relied upon sleep deprivation, stress positions, physical assault, attack by dogs and forced exercise to make him admit he was a terrorist. The US even used a Taliban videotape of Mr. Janko's "confession" and tried (unsuccessfully, ultimately) to pass it off as the martyrdom video of an al-Qaeda suicide bomber.

Mr. Janko's mental state deteriorated seriously, and he spent years in Guantánamo's psychiatric ward, given antidepressant, antiseizure and antipsychotic medications. He subsequently filed suit against the US government for the torture, and is said to live under an assumed name in Belgium.

Both Abu Zubaydah and Abd al-Rahim Abdul Razzak Janko were two of the primary sources used to build the case against Naji. The other Algerian arrested with Naji, Musafa Hamilil, was released from Guantánamo without charges in July 2008 and returned to Algeria at that time. Once in Algeria, Mr.Hamlili was charged with "counterfeiting and affiliation to a militant group that is active abroad." He was acquitted of those charges in February 2010.

But Naji was not so lucky. According to the Reprieve story, Naji is suffering "serious health complications" in regards to his leg, which was amputated after he stepped on a landmine in 2001, while doing charity work in Kashmir. The US accused him of being a landmine expert, but Naji told his Combatant Status Review Hearingthat he had nothing to do with mines or the planting of mines, and admitted to some details because of serious beatings. "I had a difficult time when I was first transferred to Cuba ... I was tortured and made to tell things against myself," Naji told the Guantánamo military hearing. "The interrogators forced me to say these things, because I was scared to be punished."

His family is reportedly concerned about the deterioration of Naji's health while imprisoned at El Harache prison in Algiers. His attorney, Hassiba Boumerdassi, reports his condition is "worsening by the day." Reprieve charges that Naji has been denied adequate health care.

Katie Taylor, a "Life After Guantánamo" caseworker for Reprieve stated, "It is outrageous that Mr Naji is being punished again for the same discredited accusations that the US used to hold him in Guantánamo for eight years without charge or trial - this time in his own country. Algerian authorities must restore his right to a fair trial and overturn his conviction on faulty charges for which the prosecutor did not even bother to introduce evidence."

Iraqi Torture Scandal Touches Highest Levels of NATO

Originally posted at Truthout

A scandal unfolding in Denmark over the transfer of Iraqi prisoners by Danish forces to Iraq authorities, even as they knew they would be tortured, threatens to implicate the current Secretary General of NATO Anders Fogh Rasmussen, formerly prime minister of Denmark from 2001-2009.

The defense ministry in the government of former Prime Minister Rasmussen is charged with withholding its knowledge of Iraqi torture from legislators when a copy of a 2004 inspection at Al Makil prison in Basra was sent to Parliament.

According to an article last month in the Danish paper Politiken, portions of the report describing prisoner abuse were "blacked out," with the reason given that such "information could harm Danish-Iraq cooperation."

Yet, three months before the prison inspection, in May 2004, during a debate in the Danish Parliament concerning Iraqi prisoners, according to the paper Dagbladet Information (English translation here), then-Prime Minister Rasmussen said the government would "disclose information about torture, if the government becomes aware that it occurs." But evidently, this did not occur.

According to The Copenhagen Post, a Danish English-language daily, the July 2004 investigation by Danish Army legal adviser Maj. Kurt Borgkvist revealed that "prisoners in Iraqi prisons had been burned with cigarettes, had their molars crushed and been beaten around their genitals. Some were even missing fingers, Borgkvist reported." The resulting report included photographic evidence, which has been described as "Abu Ghraib-lignende" ("Abu Ghraib-like") by the previous Danish defense minister.

Rasmussen, leader of Denmark's Liberal Party, resigned as prime minister in April 2009 in order to accept a position as NATO's secretary general. Most recently, he was an outspoken supporter of NATO's military support to the overthrow of the Gaddafi regime in Libya. Last November, the Liberal Party and its coalition partners lost power for the first time in almost a decade, losing to a coalition led by the Social Democrats. Rasmussen was also a key supporter of the US campaign to go to war in Iraq in 2003, ironically citing in a UN address Iraqi violations of international anti-torture treaties.

The scandal first arose in 2010 from documents released by WikiLeaks in the "Iraq War Logs." A November 2010 article at Ice News reported how a memo released by WikiLeaks described an inquiry by "a Danish Defence Ministry official" regarding "what happened at the American Abu Ghraib prison in Iraq after media reports of torture and abuse in 2003." Subsequently, "Danish soldiers continued to hand over prisoners to the facility, however, even after the torture was officially confirmed several months later."

"'That Denmark didn't intervene in time simply shows that someone must have stopped the criticism at the political level', said Social Democratic Defense Spokesman John Dyrby Paulsen. 'That is also why we want an inquiry into all of this', he added."

An October 2010 story in Dagbladet Information noted that "coalition forces share military reports" and "the Danish military has also had access to accounts on Iraqi police methods," indicating that all the coalition forces, Denmark included, "had knowledge of the situation which was consistent with several highly critical warnings from organizations such as The International Red Cross and Human Rights Watch."

A government commission into Denmark's involvement in the Iraq war is expected later this year. The last Danish forces left Iraq last November.

The WikiLeaks logs also revealed that Danish forces in Iraq had been involved in turning greater numbers of prisoners over to the Iraqis than the Danish government had previously revealed.

According to a report at WikiLeaks Press, former Danish Defense Minister Søren Gade previously told the Danish Parliament that Danish troops had only 21 prisoners. But according to the leaked "War Logs," "the actual number of prisoners taken in the period at a minimum of 95. Of these, 62 were handed over to Iraqi authorities, who were well known to be carrying out torture in Iraqi prisons." In reply, the Defense Ministry "argued that the reason for the great disparity between the reported number of prisoners was due to the fact that many of the prisoners had been captured by British troops and that the Danish troops therefore could not be held accountable."

But recent revelations have seen the number of prisoners actually handed over has grown from a later admitted 200 to a reported 500 or more. The higher number surfaced in a memorandum from Defense Chief Gen. Knud Bartels to the new Defense Minister Nick Hækkerup. (Bartels, himself, has recently assumed the position of NATO's Military Committee chairman.)

In a January 2 article, The Copenhagen Post reported that Denmark's former Defense Minister Søren Gade would be called as a witness in an upcoming trial, stemming from a lawsuit by six Iraqis who were arrested in winter 2004 by Danish forces supporting the US-led coalition forces in Iraq. The prisoners were turned over to Iraqi forces and subsequently tortured.

As the Post notes, "According to international law, soldiers may not deliver prisoners of war to another authority they suspect of mistreating or torturing prisoners." This international prohibition is written into the UN Convention Against Torture, which states that no signatory to the treaty can return or refoule any person to a state authority "where there are substantial grounds for believing that he would be in danger of being subjected to torture."

In a January 5 editorial, the Post insisted that "ordering soldiers to turn a blind eye to the likely mistreatment of detainees amounts to a cold-blooded disregard for the well-being of others." The paper called for the Danish military to cooperate with any investigations, "even if that means allowing top brass, former ministers or senior statesmen to be felled in the process."

A further dimension to the scandal concerns not only the number of prisoners involved, but also the ways the Danes tried to hide their culpability.

The Bartels letter to Hækkerup also described, according to Politiken, how "'in a few cases' Iraqi prisoners were illegally handed over to Iraqi authorities and that in many cases Danish troops avoided defence directives by letting British troops detain Iraqis during joint missions in order to avoid responsibility."

The controversy over handing over prisoners to be tortured by Iraqi forces has not been limited to Denmark. Indeed, after the release of the WikiLeaks "Iraq War Logs," numerous reports of such transfers of prisoners, despite knowledge of torture practices, were published in the British and US press.

According to the publication of one of the "Iraq War Logs" by the Bureau of Investigative Journalism, in at least one case, a US military interrogator threatened a prisoner with being turned over to the notorious Iraqi Wolf Brigade, "where he would be subject to all the pain and agony that the wolf battalion is known to exact upon its detainees."

Similar charges of coalition forces turning prisoners over for torture in Afghanistan have also raised controversy. Last September, NATO announced it was suspending many such transfers after years of reports of torture by Afghan security and military personnel.

The Obama administration has pointedly refused to initiate any investigations into US torture, while the British government has announced formation of a government commission to look into the torture charges. The British commission, which has yet to begin its work, has been boycotted by human rights groups, who describe the commission as "toothless" and lacking "meaningful, independent" review.

NATO headquarters did not return a request for comment as of press time. In addition, attempts to verify details of "Iraq War Logs" information were stymied by what appears to be an Internet-wide suppression of the formerly available documents.

Note: This posting has been updated to correct the date of Anders Fogh Rasmussen's resignation and the titles of two Danish news publications.

"Confess or be ready to die": UN Report Pummels US Ally Afghanistan on Torture

The UN Assistance Mission to Afghanistan (UNAMA) has released its October 2011 report on "Treatment of Conflict-Related Detainees in Afghanistan" (PDF). Ten years after the US invaded Afghanistan to oust the Taliban regime, and ostensibly dismantle the Al Qaeda forces linked to the 9/11 attacks, the regime in place is not only hopelessly corrupt and unable to provide security for its citizens, Afghan security forces in the National Security Directorate (NDS) have been charged by UNAMA with "systematically" torturing "detainees for the purpose of obtaining confessions and information" at a number of provincial facilities.

The report alleges that fully 46 percent of prisoners held by security forces, and approximately one-third held by Afghan national police (ANP), are tortured. Furthermore, "[n]early all detainees tortured by NDS officials reported the abuse took place during interrogations and was aimed at obtaining a confession or information." Until last month, the U.S. routinely turned prisoners over to Afghan security forces, while NATO stopped turning over prisoners to a number of different Afghan facilities last July.

Controversies over allied forces releasing prisoners to Afghan security, where they reliably knew they would be tortured, have simmered for years now. As Marcy Wheeler highlighted in an article on the UN report today, according to UNAMA, "The US has not yet put in place a monitoring programme to track detainees it hands over to Afghan authorities."

Turning prisoners over to forces or governments that are known to commit gross human rights violations, such as torture or murder of detainees, is a violation of international law, and of the US-signed Convention Against Torture treaty.

Torture of Children

Ten percent of the prisoners examined were minors. Nearly two-thirds of the children held by the NDS and ANP (62 percent) were tortured.

UNAMA's report was statistically derived from a random sampling. Issues of possible falsification of torture evidence is addressed in the report, and the evidence was found to be credible. (Actually, the Executive Summary says the allegations have not been judged on their credibility. But the Methodology section of the report states, "In a number of cases, UNAMA interviewers observed injuries, marks and scars that appeared to be consistent with torture and ill‐treatment or bandages and medical treatment for such injuries as well as instruments of torture described by detainees such as rubber hoses." The report adds that "UNAMA rigorously analysed patterns of allegations in the aggregate and at specific facilities which permitted conclusions to be drawn about abusive practices at specific facilities and suggested fabricated accounts were uncommon..."

UNAMA statisticians calculated the margin of error for the different samples they used ranged from approximately 5 to 9 percent.

Torture for Confessions

A major conclusion from the report is that much of the torture was specifically aimed at obtaining confessions from prisoners during torture. UNAMA notes, "Confessions are rarely examined at trial and rarely challenged by the judge or defence counsel as having been coerced." Hence, there's very little to constrict government prosecutors in using torture to get their confessions, and confessions are "[i]n most cases... the sole form of evidence or corroboration submitted to courts to support prosecutions." There are few procedural safeguards for defendant prisoners, and what few there are are routinely ignored.

The following is testimony from one prisoner cited specifically in the report, Detainee 371 at Kandahar, interviewed last May:

After two days [in a National Directorate of Security (NDS) facility in Kandahar] they transferred me to NDS headquarters [in Kandahar]. I spent one night on their veranda. On the following day, an official called me to their interrogation room. He asked if I knew the name of his office. I said it was “Khad” [Dari term for the former NDS]. “You should confess what you have done in the past as Taliban; even stones confess here,” he said. He kept insisting that I confess for the first two days. I did not confess. After two days he tied my hands on my back and start beating me with an electric wire. He also used his hands to beat me. He used his hands to beat me on my back and used electric wire to beat me on my legs and hands. I did not confess even though he was beating me very hard. During the night on the same day, another official came and interrogated me. He said “Confess or be ready to die. I will kill you.” I asked him to bring evidence against me instead of threatening to kill me. He again brought the electric wire and beat me hard on my hands. The interrogation and beating lasted for three to four hours in the night. The NDS officials abused me two more times. They asked me if I knew any Taliban commander in Kandahar. I said I did not know. During the last interrogation, they forced me to sign a paper. I did not know what they had written. They did not allow me to read it.

According to the report, forms of torture included "routine blindfolding and hooding [i.e., sensory deprivation] and denial of access to medical care," in addition to "suspension (being hung by the wrists from chains or other devices attached to the wall, ceiling, iron bars or other fixtures for lengthy periods) and beatings, especially with rubber hoses, electric cables or wires or wooden sticks and most frequently on the soles of the feet. Electric shock, twisting and wrenching of detainees’ genitals, stress positions including forced standing, removal of toenails and threatened sexual abuse..."

Alibiing the Afghan Government

Strangely, after describing the "systematic" use of torture by Afghan security and police forces, UNAMA declares the Afghan government innocent of use of torture as government policy. The report cites the fact that the NDS cooperated with the investigation, concluding "the use of torture is not a de facto institutional policy directed or ordered by the highest levels of NDS leadership or the Government. This together with the fact that NDS cooperated with UNAMA’s detention observation programme suggests that reform is both possible and desired by elements within the NDS."

This is a surprising assertion, and of course, the international press has highlighted this supposed reassurance about the Afghan government in its coverage of the report's conclusions. The cooperation of the NDS appears to have been equivocal at best. For one thing, as the report concedes, the NDS refused to allow UNAMA to visit its national counter-terrorism facility in Kabul, or interview prisoners there. Known as Department 90, it is where "high-value" prisoners are held. Information on Department 90 prisoners was gathered from those held elsewhere who previously had been held at the NDS Kabul facility.

Twenty-six of 28 prisoners who were determined to have been held at Department 90 were tortured, leading to a near 100 percent probability of being tortured there. One prisoner told UNAMA investigators, "When they took me to [Department] 90, I did not know where I had been taken. . . After two days, I learned that I was in 90 from my cellmates. There is so much beating at 90 that people call it Hell." Five of the six children interviewed who had been held at Department 90 were tortured.

The Afghan government has long promised they would clean up their act regarding abuse of prisoners, and US agencies have covered up for them in the past. A 2006 RAND study, prepared for George Soros's Open Society Institute, that torture and extrajudicial killings were in decline by Afghan authorities, and that US assistance had "somewhat improved" human rights practices by Afghan police. (RAND has a very stringent warning about quoting its material, or even providing links, but here's the link the New York Times gave in its article on the UNAMA report.)

One can only conclude that the US government has been more than supportive of the torture policies within Afghanistan, only withdrawing funds when it was politically expedient to do so. Most of the stories on the UNAMA report have noted UNAMA's mention of the so-called "Leahy law." According to UNAMA, "legal provisions in the US Foreign Appropriations Act and Defence Appropriations Act prohibit the US from providing funding, weapons or training to any unit of the security forces of a foreign country if the Secretary of State has credible evidence that such unit has committed gross human rights violations, unless the Secretary of State determines the concerned government is taking effective remedial measures" (emphasis added).

None of the press results and analysis thus far has noted this escape from accountability clause, wherein the Secretary of State can decide a foreign government -- say, Afghanistan -- which has committed "gross human rights violations," is sincerely doing the best it can to address the issue. Indeed, parts of the UNAMA report appear to be written to allow just such an interpretation by the Obama/Clinton-led State Department.

So while the Americans and their allies in the International Security Assistance Force (ISAF) have as of last month, "in response to the findings in this report, "stopped transferring detainees to certain installations as a precautionary measure," the report also notes that a return to the previous transfer policy "would presumably require the US to resume transfer of detainees only when the Government of Afghanistan implements appropriate remedial measures that include bringing to justice NDS and ANP officials responsible for torture and ill‐treatment."

But this doesn't speak to the funding or arming of the Afghan security and police forces. Indeed, by indicating that portions of the government, including the NDS, are sympathetic and trying to change the abuse/torture situation, it would appear that ammunition is being provided to Secretary Clinton to conclude that a good faith effort is being made, and bypass the provisions of the Leahy Law. This would seem to be the point in concluding the torture is not "institutional," and that "reform is both possible and desired by elements within the NDS."

But anyone reading this report could hardly come to this politically convenient conclusion. In fact, senior NDS officials admitted "they have investigated only two claims of torture in recent years, neither of which led to charges being pursued against the accused NDS official." Nor would NDS officials "provide UNAMA with any information on any other disciplinary or criminal action against NDS officials for torture and abuse." This doesn't sound like desired elements for reform to me.

Ten years after US and foreign forces invaded Afghanistan and installed a puppet regime, all the while jockeying for alliances among various warlord forces, has not improved the human rights situation in Afghanistan. Surely the Taliban and the various warlords cannot be counted upon to provide such improvement either. But there is one big difference. The Taliban are not foreign invaders. While such foreign invaders occupy the country, killing civilians and giving political and military support to a torture regime, no progress from within Afghanistan can take place.

Originally posted at FDL's The Dissenter

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.”

Obama "Stealth Transfer" of Gitmo Prisoner, Algerian Forcibly Repatriated

Originally posted at Firedoglake

The Obama administration has shown a blatant disregard for international treaties and basic human rights in its second forcible deportation from Guantánamo of an Algerian national in the last six months. On January 6, the administration secretly and forcibly repatriated 48-year-old Farhi Saeed bin Mohammed to Algeria, which he reportedly fled in the 1990s, trying to escape threats from Islamic extremists. In a press release from Center for Constitutional Rights (CCR), which condemned "in the strongest possible terms" the deportation, CCR noted that "Mr. Mohammed has long been cleared of any connection with terrorism."

Farhi had been ordered released from Guantánamo , when District Court Judge Gladys Kessler granted his habeas petition. He had spent nearly nine years at the U.S. prison facility, most of the time in maximum security solitary confinement. While the former itinerant laborer said he had traveled to Afghanistan to find a wife for himself, 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. What is undisputed is that after 9/11 and the U.S. invasion of Afghanistan, Farhi fled to Pakistan where he was captured and subsequently transferred to Guantanamo in 2002.

Once cleared by the District Court, Mr. Mohammed fought the government not to be sent back to his native Algeria, fearing persecution by either Islamic militants or by the government. Indeed, every Algerian Guantanamo prisoner sent back to that country thus far has been initially arrested and put on trial, though none have been convicted. U.S. authorities have said they conducted a "comprehensive review" of Farhi's case prior to his release. The U.S. government maintains that "the Algerian government has provided so-called 'diplomatic assurances' – promises to treat returned detainees humanely.” But Human Rights Watch watch replied that "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. Algerian human rights groups report that torture and other cruel, inhuman, or degrading treatment are at times used on those suspected of terror links."

Torture and Persecution in Algeria

Indeed, the last U.S. State Department Human Rights Report on Algeria, released February 25, 2009, indicated numerous problems with conditions in that country. While torture and other cruel, inhuman, or degrading treatment or punishment is illegal, human rights activists "local human rights activists reported that government officials employed such practices to obtain confessions," and "impunity remained a problem." The report singled out a February 2008 incident when an inmate protest on prayer conditions resulted in prison guards handcuffing, stripping and beating "approximately 80 prisoners with iron bars and sticks."

The State Department report also indicated noted that, except for the International Red Cross, all other human rights groups are forbidden to inspect conditions at Algerian military and high-security prisons and detention centers. Detainees are often held in jail without charges for months on end, and receive little or no medical care. The report also said, "in practice authorities did not completely respect legal provisions regarding defendants' rights and denied due process. Military courts try all "cases involving state security, espionage, and other security-related offenses involving military personnel and civilians," but only rarely is any information given about these proceedings. The government monitors "the communications of political opponents, journalists, human rights groups, and suspected terrorists," as well as political meetings. The country remains under rule of an emergency degree. Meanwhile, radical Islamic extremists belonging to al-Qa'ida in the Islamic Maghreb (AQIM) have "issued public threats against all 'infidels' and 'apostates' in the country, both foreigners and citizens, killing approximately 160 people in the country in 2008.

A prisoner or refugee cannot by international law be returned to a country where they fear persecution or death. This principle is enshrined in the UN Convention Against Torture treaty to which the U.S. is signatory: "No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture."

Furthermore, Article 33 of the United Nations Convention Relating to the Status of Refugees (July 28, 1951), to which the U.S. is also signatory, states: "No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." (A 1967 Protocol expanded the Convention's coverage from European to all refugees.) There is no question that Farhi meets the Convention's definition of a refugee, and has since leaving Algeria in the 1990s, until wrongly apprehended by the U.S. in 2002.

The Role of Congress and the Courts

It is notable that Congress has played a role in this administration's flaunting of international law and decency. As Andy Worthington and others have pointed out, Congress has prevented the Obama from "bringing any Guantánamo prisoner to the US mainland for any reason". In addition, as I pointed out in an article on the forcible deportation of Algerian Guantánamo prisoner Abdul Aziz Naji in July 2002, Congress has an oversight role over the release of any Guantánamo prisoner.

According to the 2010 Homeland Security Appropriations, Interior Appropriations, Consolidated Appropriations, and Defense Appropriations Acts, all of which contain similar language on the subject, no funds are to be appropriated for the transfer of a Guantanamo prisoner to another state unless 15 days prior to release the President submit to Congress, "in classified form," a statement regarding any risks to national security or U.S. citizens, the name of the prisoner and country of release, and "the terms of any agreement with the country or freely associated state that has agreed to accept the detainee." (See PDF link.)

At that time, Senator Carl Levin and Senator Dianne Feinstein's offices confirmed they had been informed at least 15 days in advance of Naji's deportation. There's no reason to doubt they had the same notice in the case of Farhi Saeed bin Mohammed, and essentially signed off on the forcible deportation, demonstrating Congressional complicity in this flagrant violation of the laws of the land.

Mr. Mohammed's case had been high-profile. After the granting of his habeas petition, he fought a repatriation to Algeria, for the reasons stated earlier, and Judge Kessler granted that request. But, as Larkin Reynolds explains at Lawfare, "the D.C. Circuit later reversed that injunction in July, however, in an expedited summary proceeding." Farhi's attorneys then asked the Supreme Court for a stay of the Circuit court's decision. While their petition was denied last July, another petition regarding the transfer issue was sent to the Supreme Court last November. According to Reynolds, "The government’s response to the petition is due on February 4, 2011." But the forced deportation of Farhi apparently makes that decision moot.

David Remes, Farhi's counsel in the Supreme Court case told Lawfare, the Obama administration's actions amounted to a "stealth transfer":

The government shipped Mr. Mohammed back to Algeria against his will –- the second involuntary transfer of an Algerian in the past six months -– giving us no advance notice and therefore no chance to resist. The government may also intend Mohammed’s transfer to moot his petition for review in the Supreme Court, in which he challenged the government’s right to make exactly this kind of involuntary transfer, that is, a transfer where the detainee fears he will be tortured or abused if he is returned. The government has used this tactic to avoid judicial review of its actions in other cases involving military detention of war-on-terror captives -– Padilla, Al-Mar’i, and Abu Ali are examples. From Mr. Mohammed’s case, it’s apparent the government wants to avoid public scrutiny too.

The Role of the Democratic Party

The government's actions in the case of should be sharply condemned, but outside of some human rights groups, almost nothing is being said or reported on this crime by our own government. (The Washington Post did report the story.) The fact that a Democratic administration, and practically up to the time he was secretly deported, a Democratic Congress, were the primary actors in this decision is something that appears to fly over the heads of most Democratic Party and Obama supporters, for whom nothing, not even plans to issue an executive order allowing indefinite detention of prisoners at Guantánamo, seems to move to principled action.

The U.S. currently holds 173 detainee-prisoners at Guantánamo. Three other Algerians remain at the Naval prison facility, also fearing forced deportation for reasons similar to that of Farhi Faheed bin Mohammed, and Abdul Aziz Naji. The three other cleared Algerians are Motai Saib, Djamel Ameziane and Nabil Hadjarab, and Andy Worthington covered their stories in an article in July 2009.

This latest move by the Obama administration must have thrown fear into these prisoners, assuming they have heard of it. But it should throw fear into Americans as well, as their government has shown that it has little patience for such things as the rule of law. Consider these unlawful deportations along with the story of the torture of 19-year old American citizen Gulet Mohamed last month by U.S. ally Kuwait, after he was placed on a no-fly list by the Americans. The U.S. reportedly collaborated in Mohamed's detention, and should be held partly responsible for Mohamed's torture.

Congress OK'ed Naji Deportation, Ex-Gitmo Prisoner Charges Drugging, Torture, Coercion to Spy

Originally posted at Firedoglake/The Seminal

The odyssey of Abdul Aziz Naji has taken many terrible twists and turns since he was seized in Pakistan in May 2002, tortured at Bagram, then sent to Guantanamo, where he was formally cleared of any charges in a review of prisoner status last year. He was forcibly repatriated to Algeria on July 20, despite his fears of being harmed by Islamic forces or the government upon his return. Such forcible repatriation of a prisoner or detainee who fears persecution or worse is a violation of international law. This principle of non-refoulement, or non-return is specifically forbidden in the UN Convention Against Torture and Convention Relating to the Status of Refugees.

The Obama administration was cleared to effect the deportation against the prisoner's will by no less than the Supreme Court, who rejected a lower court order blocking the action. What hasn't been reported thus far is the role of Congress, who was mandated to have advance notice of the transfer.

According to the 2010 Homeland Security Appropriations, Interior Appropriations, Consolidated Appropriations, and Defense Appropriations Acts, all of which contain similar language on the subject, no funds are to be appropriated for the transfer of a Guantanamo prisoner to another state unless 15 days prior to release the President submit to Congress, "in classified form," a statement regarding any risks to national security or U.S. citizens, the name of the prisoner and country of release, and "the terms of any agreement with the country or freely associated state that has agreed to accept the detainee." (See PDF link.)

Congress Informed of Plan to Flout the Law

Both the offices of Senator Carl Levin, chairman of the Senate Armed Services Committee, and Senator Dianne Feinstein, chairwoman of the Senate Select Committee on Intelligence, confirmed to me that the 15-day notification did take place, meaning that requisite Congressional committees were informed of the deportation and the fact that it was taking place on the basis of non-refoulement, and presumably, as the Obama administration has maintained, with "diplomatic assurances" from the Algerian government the prisoners would not be mistreated. The Washington Post said the administration took this to be good coin "because 10 other detainees have been returned to Algeria without incident." But we know that in a number of these cases, the former Guantanamo prisoners were subsequently imprisoned and put on trial. Moreover, numerous human rights organizations have decried reliance on "diplomatic assurances" of safety as not being reliable.

Human Rights Watch described the problem with such "assurances":

Governments that engage in torture routinely deny it and refuse to investigate allegations of torture. A government that is already violating its international obligation not to torture cannot be trusted to abide by a further "assurance" that it will not torture.

Then, too, there is fear that the government cannot protect returnees against being preyed upon by Islamic radical forces. As the U.S. 2006 State Department report on Algeria explained:

The country’s 1992-2002 civil conflict pitted self-proclaimed radical Muslims belonging to the Armed Islamic Group (GIA) and its later offshoot, the GSPC, against moderate Muslims. During the year [2005] radical Islamic extremists issued public threats against all “infidels” in the country, both foreigners and citizens. The country’s terrorist groups generally did not differentiate between religious and political killings.

A number of remaining Algerian prisoners fear return as well. One of them, Farhi Saeed Bin Mohammed, who won his "freedom" via habeas appeal last year, was one of the prisoners whose deportation block was lifted by the Supreme Court at the same time as Naji. To date, he remains at Guantanamo. Andy Worthington describes the fate of the others, including Djamel Ameziane, a Berber who fled Algeria years ago and lived five years in Canada.

The action, or more properly, inaction of Congress in the face of the illegal return (by international standards and U.S. treaty) of Abdul Aziz Naji to Algeria is inexcusable. When asked to make further explanation on policy regarding non-refoulement in general, or in the case of Mr. Naji, both Sen. Levin and Sen. Feinstein's office declined to comment. We can only be left with the impression that they did not intend to stand in the way of this breaking of international law, and only a widespread outcry has assured, for the moment, that further such deportations have been delayed.

While, after a week's incarceration, and some confusion about his fate, Naji is now reported to be safe at his family's home in Batna, about 300 miles east of Algiers, it's not clear that his safety is assured. Naji had stated that he feared torture, or death, at the hands of either the Algerian government or the Islamic fundamentalist oppositions who have been fighting the government. Over 10,000 have died in this conflict since the early 1990s. As a July 25 New York Times editorial on the Naji deportation noted, U.S. State Department reviews have described the ongoing use of disappearances and the extraction of confessions through torture by the Algerian government.

Andy Worthington has described the case of Mustapha Hamlili, who was arrested with Mr. Naji in Peshawar. He was voluntarily repatriated from Guantanamo to Algeria in July 2008, but then "was subsequently charged with 'membership in a terrorist organization abroad and using forged travel documents.'" He was only cleared of charges and released last February. Others have faced charges against them over a year after the actual repatriation. Naji may be safe now, but as Worthington warns, "I hope that Abdul Aziz Naji is able to stay in contact with his lawyers, and that he can establish contact with representatives of human rights groups, to ensure that his appearance in the Algerian media is indicative of a new openness on the part of the Algerian government, as is not just a PR stunt, and also, hopefully, to avoid the farcical charges and long-winded trials to which all the other returned Algerians have been subjected."

The Hell that is Guantanamo

Naji's own incredible tale of his incarceration at Guantanamo, reported in the Algerian newspaper El Khabar, has not received a U.S. audience. British journalist Andy Worthington describes it, though, in an article late last week. Worthington is a fantastic reporter who also recently updated the U.S. rendition story in an article, "New Evidence About Prisoners Held in Secret CIA Prisons in Poland and Romania."

According to the July 28 interview with Naji, prisoners were tortured to give false confessions. Even more incredibly, they were forced "to take some medicines for three months to drive them crazy, loosing [sic] memory and committing suicide." Charges of drugging prisoners have been widespread, but have been difficult to verify. An Inspector General investigation on such drugging was initiated in 2008, but nothing further has been heard, save for an indication earlier this year that the investigation was still underway.

Naji also charges that "some detainees had been promised to be granted political asylum opportunity in exchange of [sic] a 'spying role' within the detention camp." Once released, they maintain their spying role, he charged. It is difficult to imagine that the U.S. has not tried to use some prisoners in this way. In fact, the suicide bombing at the CIA's Forward Operating Base Chapman, Afghanistan, which killed seven CIA officers and a Jordanian intelligence official last December, was undertaken by a Jordanian doctor who was supposedly "turned" after a short period of imprisonment (and likely torture or blackmail) by the Jordanians. One is reminded, too, of the attempts of Britain's MI5 to turn British resident and U.S. rendition prisoner Binyam Mohamed into an informer, while he was being tortured in a Moroccan prison in September 2002.

We cannot know for sure, but it may have been Naji's refusal to so turn informant that led him to be considered for forced repatriation by the Obama administration, as in all other cases since January 2009 the government had followed the Bush administration in not undertaking the forced deportation of any Guantanamo prisoner.

Naji's forced repatriation, his story of drugging and torture and coerced confessions at Guantanamo, and tales of deals with prisoners, swapping political asylum for spying, are all very disturbing. They reveal a side of the government's actions in what used to be called the "war on terror" that is rarely even mentioned in the press anymore. When any truth about U.S. military or intelligence activity does leak out, as when Wikileaks released tens of thousands of military reports from Afghanistan a few weeks ago, such attempts to unveil government actions have been met by official condemnation and even calls for extrajudicial action against Wikileaks founder Julian Assange, and China-like censorship of the Wikileaks website.

The United States exists today in a state of moral anarchism. The government gives lip service to the rule of law, but repeatedly and consistently shows its disdain for international protocols. As Shahid Buttar of the Bill of Rights Defense Committee pointed out recently, the FBI has been politically spying on Americans for ten years now, and wants the freedom to do even more. BORDC is one of 50 peace, environmental, civil rights, and civil liberties groups seeking "long overdue legislative limits to constrain the FBI" (PDF). Meanwhile, the ACLU and the Center for Constitutional Rights are seeking "a federal court order restraining the Obama administration from killing [the son of Nasser al-Awlaki] without due process of law." The son, Anwar al-Awlaki, a U.S. citizen, is on a government assassination list.

Cases like that of Abdul Aziz Naji put a human face on the actions of the U.S. government. Organizations as diverse as Wikileaks, BORDC, ACLU, CCR and others are fighting to turn this nation back from its headlong plunge into militarism, torture, and assassination, all the deformations that result from substituting imperialism for democracy. But real democracy will not take place until serious, and far-reaching societal and institutional change takes place. This is the challenge of our generation, a challenge we dare not refuse to answer.

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.