Last week, the release from Guantánamo of Abdul Aziz Naji, who was transferred to Algerian custody against his wishes, overshadowed other news from the prison, and with good reason. As I explained in an article at the time, the Obama administration, the Supreme Court and the D.C. Circuit Court, which all played prominent roles in his enforced repatriation, had flouted the United States’ commitment, under the terms of the UN Convention Against Torture, not to “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.”
Given that, in its 2009 report on human rights in Algeria, the US State Department noted, “Local human rights lawyers maintained that torture continued to occur in detention facilities, most often against those arrested on ‘security grounds’” it was not entirely reassuring that an Obama administration official told the Washington Post that the Algerian government had “provided diplomatic assurances” that prisoners returned from Guantánamo “would not be mistreated,” and added, “We take some care in evaluating countries for repatriation. In the case of Algeria, there is an established track record and we have given that a lot of weight. The Algerians have handled this pretty well: You don’t have recidivism and you don’t have torture.”
Following Naji’s transfer, Human Rights Watch and the Center for Constitutional Rights issued immediate press releases urging the Obama administration to recognize its international obligations, and warning that Naji had legitimate fears of both the Algerian government and of extremists who might prey on him, and on Wednesday Manfred Nowak, the UN Special Rapporteur on Torture, and Martin Scheinin, the UN Special Rapporteur on the Protection of Human Rights while Countering Terrorism, issued a statement drawing attention to the Supreme Court rulings that paved the way for the enforced transfer of Naji and another Algerian, Farhi Saeed bin Mohammed, who won his habeas corpus petition last November, but is still held.
Criticism of Obama and the Supreme Court by the UN and the New York Times
The UN experts stated, “We are extremely worried that the lives of two Algerian detainees could be put in danger without a proper assessment of the risks they could face if returned against their will to their country of origin. While we appreciate the efforts of the authorities to close the Guantánamo detention facility, the risk assessment should be a meaningful and fair process, and the courts should be part of it.” The experts also called into question the Obama administration’s reliance on diplomatic assurances that Naji — and bin Mohammed — would be treated humanely, stating, “Diplomatic assurances are unreliable or difficult to monitor,” and reiterating that they “cannot substitute the sending country’s obligation to assess the real risk facing the individual.”
Over the weekend, the New York Times became involved, noting, in a sternly worded editorial, that “A prisoner who begs to stay indefinitely at the Guantánamo Bay detention center rather than be sent back to Algeria probably has a strong reason to fear the welcoming reception at home,” reminding the Obama administration of Naji’s belief that “he would be tortured if he was transferred to Algeria, by either the Algerian government or fundamentalist groups there,” and criticizing the decision to forcibly repatriate him as “an act of cruelty that seems to defy explanation.”
The Times also noted that Naji had asked for political asylum in Switzerland, which Ellen Lubell, one of his lawyers, elaborated on at the weekend, telling supporters, “We had applied for asylum in Switzerland for Aziz and his application was proceeding through the Swiss courts with support from many in that country.” The Times also ran through the outline of Naji’s story, noting that he was “picked up by the police in Pakistan in May 2002 and turned over to the Americans on suspicion of being a terrorist,” and adding that, although he “admitted working for the humanitarian wing of Lashkar-e-Taiba, the Pakistani terrorist organization,” the Bush administration “never charged him with a crime, explained why he was being held, or demonstrated any connection to terrorist acts.”
Abdul Aziz Naji’s story
This was a fair précis of Naji’s case, although it is worth elaborating on in more detail. As the Center for Constitutional Rights explained (PDF), he was born in 1975 in Batna (about 300 miles east of Algiers), and, after completing his schooling, worked in his father’s blacksmith shop and then undertook his obligatory military service in the Algerian army. In early 2001, he traveled to Pakistan to provide humanitarian aid to Muslims and Christians in Kashmir, but one night, while carrying food and clothing to poor villagers with a group of other volunteers, he stepped on a landmine and sustained a serious injury, which led to the loss of his lower right leg.
After being treated in a hospital in Lahore, where he was fitted with a prosthetic leg, he was taken in by a few generous families while he recuperated, and was then recommended to visit an Algerian in Peshawar, near the Afghan border, who would be able to help him find a wife. While visiting this man in May 2002, he was seized in a raid by Pakistani police — one of many raids at the time that helped to fill Guantánamo — even though he was never told why he had been seized, and, in fact, was told by the Pakistanis who seized him that he would be released.
In Guantánamo, Naji told his interrogators that he was unaware that Lashkar-e-Taiba was affiliated with al-Qaeda, as the Americans alleged (which was understandable, as LeT’s humanitarian work was separate from its military operations), and was also obliged to counter an allegation that he had received de-mining training at an LeT camp, pointing out that the fact that he lost his leg after stepping on a mine made a mockery of the allegation, and explaining that it was something he had been forced to admit when he was tortured in the US prison at Bagram airbase after his capture. He also explained the meaning of jihad to a military review board that reviewed his case, telling the panel of three officers, “The jihad does not have to be a jihad where you fight. Jihad can be carrying food or helping others. It does not have to be fighting.”
The latest news from Algeria
After Naji’s return, there were alarming indications that the worst fears about the Algerian authorities had been confirmed, when the Associated Press reported that the state prosecutor’s office in Algiers had stated on Monday that Naji had been “indicted,” on unspecified grounds. It later transpired that this was not the case, and that, as Reuters explained, Naji had been reunited with his family after approximately a week in lawful detention (according to Algerian law, terror suspects can be held for up to 12 days before appearing in court). A judicial source “who did not want to be identified” told Reuters, “He is at home in Batna. He just needs to go every week to the local police station to sign a form.”
In a statement, the prosecutor’s office said Naji “was released after appearing before a judge on Sunday who placed him under judicial control — which means he has to report regularly to police pending a further decision on his case,” as Reuters described it. The statement also explained, “Contrary to what has been falsely reported, this person’s case has 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.”
The Algerian government could still spring a surprise on Naji, by deciding to put him forward for a trial, but even if the authorities leave him unmolested, there is no guarantee that the extremists that Naji fears will do the same — and it remains deeply troubling that the Obama administration may still seek to forcibly repatriate four other Algerians, also cleared for release after the deliberations of the President’s interagency Guantánamo Review Task Force, who are also terrified of returning home, as the Washington Post explained three weeks ago in an article entitled, “Six detainees would rather stay at Guantánamo Bay than be returned to Algeria.”
Although administration officials conceded last week that they would “continue to examine each case individually before any repatriation,” noting that some officials “have expressed some concern about returning one of the Algerians [Ahmed Belbacha] who was sentenced to 20 years in prison in absentia” last year (for speaking out about his fears of repatriation), it now appears, as I explained last week, that there is “no obstacle to prevent the Obama administration from sending the other four Algerians home whenever it feels like it.”
The other Algerians who fear enforced repatriation from Guantánamo
From what I can ascertain, given that the Obama administration has not released details about the men cleared for release by the Guantánamo Review Task Force, these men are, in addition to Farhi Saeed bin Mohammed, Nabil Hadjarab (PDF), Motai Saib and Djamel Ameziane (PDF), who were all cleared for release by military review boards under the Bush administration, and who all have legitimate fears about returning to Algeria.
Last February, in an article entitled, “Guantánamo’s refugees,” I described Nabil Hadjarab, who was 22 years old when he was seized, as “a young Algerian from a broken home, with relatives in Lyon, who was only persuaded to travel to Afghanistan because he was caught in limbo between Algeria and France as his family disintegrated around him.” As Afghanistan descended into chaos following the US-led invasion in October 2001, Hadjarab, who had been living in Kabul and had then moved to the eastern city of Jalalabad, tried to flee across the mountains to Pakistan, but was wounded by a bomb and taken to a hospital in Jalalabad, where he was sold to US forces.
Returning Nabil Hadjarab to Algeria would be, to extend the New York Times’ comment about Abdul Aziz Naji, “an act of cruelty that seems to defy explanation,” because his extended family is in France, and is willing to take him in, and because he has almost no family connections in Algeria, making him particularly vulnerable to both the government and to extremists who might wish to prey on him. Given that a guard in Guantánamo described him as “a brilliant artist, a keen footballer, and a sweet kid,” it is apparent that the French government should offer him a home, as his lawyers at the legal action charity Reprieve have requested.
Motai Saib, who was 25 years old when he was seized crossing the Pakistani border, had also been living in Jalalabad, and had traveled to Afghanistan via France and London. As his lawyers noted in a court filing in July 2008 (PDF), in February 2008 the Department of Defense notified them that Saib “’has been approved to leave Guantánamo,’ but stated obliquely that ‘such a decision does not equate [to] a determination that your client is not an enemy combatant, nor does is it a determination that he does not pose a threat to the United States or its allies. I cannot provide you any information regarding when your client may be leaving Guantánamo as his departure is subject to ongoing discussions.” As Saib’s lawyers noted, “Saib has serious concerns that this ambiguous and damaging language will prevent his safe release from Guantánamo.”
Djamel Ameziane, who was 34 years old when he was seized crossing the Pakistani border, had also been living in Jalalabad. A Berber, he left Algeria in 1992 “in order to escape persecution and make a better life for himself,” and unsuccessfully sought asylum in Austria, where he worked legally for three years, becoming the top chef at an Italian restaurant in Vienna, until a new government clamped down on immigrants, and his work permit was denied without explanation. From there, he moved to Canada, where he obtained a temporary work permit and worked for an office supply company and for various restaurants in Montreal. In 2000, after five years in Canada, his asylum claim was denied, and, as his lawyers explained, “Fearful of being forcibly returned to Algeria, and with few options, [he] went to Afghanistan, where he could live freely without discrimination as a Muslim man, and where he would not fear deportation to Algeria.”
Ameziane fears returning to Algeria because of the stigma of Guantánamo and the instability in his hometown of Kabylie, where, as his lawyers explained, practicing Muslims are “targeted for arrests and detention by the government based solely on their religious practices” and “The stigma of having spent time at Guantánamo would alone be enough to put him at risk of being imprisoned if he is returned.”
Advice for President Obama
With the uproar over the return of Abdul Aziz Naji, the Obama administration must surely be having second thoughts about proceeding with further enforced repatriations to Algeria, and if any further encouragement is needed, senior officials should recall that, although there were periodic threats to stealthily repatriate Algerians against their will under the Bush administration (as I reported here), the Bush administration was aware of Algeria’s dubious human rights record, and refused to repatriate Algerians who believed that they faced the risk of torture.
I leave the final word of advice to the editors of the New York Times, who concluded their editorial on Sunday with the following words:
We support the administration’s efforts to close Guantánamo, and understand the concern that if there is a more heavily Republican Congress next year, doing so may become harder. That is no reason to deliver prisoners to governments that the United States considers hostile and that have a record of torture and lawlessness.
The government refuses to deport prisoners to Libya, Syria and other countries known for abuse. It could find a new home for the Algerians.
I doubt that we will hear anything about discussions taking place behind the scenes, but for the sake of President Obama’s credibility (and, sadly, that of the Supreme Court), I hope that discussions are ongoing regarding the return of Nabil Hadjarab to France, of Ahmed Belbacha to the UK (where he lived without incident for nearly two years), of Djamel Ameziane to either Austria or Canada, and of Farhi Saeed bin Mohammed and Motai Saib to countries where dubious “diplomatic assurances” are not required to ensure their welfare as refugees who have already lost over eight years of their lives for being in the wrong place at the wrong time.