France/US: Guantanamo Detainee Resettlement a Welcome Step

More European Countries Should Step Forward to Accept Detainees

May 15, 2009

(Paris) - The French government's decision to accept Algerian detainee Lakhdar Boumediene for resettlement in France marks a welcome step toward closing Guantanamo, Human Rights Watch said today. Because some 50 to 60 detainees cannot be returned to their home countries for fear of torture, they will need to be resettled elsewhere for Guantanamo to close.

Boumediene has been reported to be on a plane en route to France, and official French government spokesmen have confirmed that he was offered French residency.

"European countries have long called on the United States to close Guantanamo," said Joanne Mariner, terrorism and counterterrorism director at Human Rights Watch. "It is extremely encouraging to see France now making a positive contribution toward helping shut Guantanamo down by accepting a detainee for resettlement."

Of the approximately 240 prisoners still being held at Guantanamo, an estimated 50 to 60 - from countries such as Algeria, China, Libya, Tunisia, and Uzbekistan - have told their lawyers that they fear torture in their home countries and do not want to be returned there. Several have been cleared for years to leave Guantanamo, and none of them faces criminal charges, but they remain imprisoned because neither the United States nor any third country has been willing to resettle them.

Human Rights Watch called on the French authorities to ensure that Boumediene receives appropriate reintegration support and said that the authorities should not place unwarranted restrictions on his liberty.

Boumediene, whose family is now in France, was arrested in Bosnia among a group of detainees who were flown to Guantanamo in early 2001. Most of these men were released to Bosnia in December 2008, after a US federal court found their detention to be unjustified.

In June 2008, Boumediene was the a lead plaintiff in a landmark US Supreme Court ruling that recognized the right of Guantanamo detainees to challenge their detention in civilian courts. Human Rights Watch filed an amicus (friend of the court) brief in Boumediene v. Bush.

To date, some 27 former detainees who were citizens or former residents of European Union member states have been returned to Belgium, Denmark, France, Germany, Spain, Sweden, and the United Kingdom. Thirteen detainees who were citizens or former residents were released to other European countries. None are known to have engaged in militant or other violent activity.

During the Bush administration, the US government approached scores of countries to ask them to take in detainees at Guantanamo, with little success. In 2006, Albania agreed to accept five Uighurs, but it later refused to take in any more. Since President Obama took office, however, several European governments have expressed a willingness to resettle other detainees.

"We hope that Boumediene will be the first of many detainees that France and other European countries will agree to welcome," Mariner said.

US: Don't Revive Guantanamo Military Commissions

Detainee Cases Should Be Transferred to US Federal Courts

May 12, 2009

(Washington, DC) - Reviving the discredited US military commissions to try Guantanamo detainees would result in needless litigation, delays, and flawed trials, Human Rights Watch said today. To ensure that terrorism suspects are tried promptly and fairly, the Guantanamo cases should be transferred to US federal courts.

Unnamed officials were quoted in the Washington Post saying that the Obama administration is preparing to restart the military commissions under new rules that would offer terrorism suspects greater legal protections. The new rules would reportedly prohibit the introduction of evidence obtained through coercion, tighten the use of hearsay evidence, and allow detainees greater choice in selecting defense lawyers than under existing military commission rules.

"The Obama administration shouldn't tinker with a fundamentally flawed system," said Stacy Sullivan, counterterrorism adviser at Human Rights Watch. "Reviving the military commissions would strip much of the meaning from closing Guantanamo."

As a presidential candidate, Barack Obama rightly called the Guantanamo military commissions "an enormous failure," Human Rights Watch said. In one of his first acts after taking office, President Obama suspended the military commissions for 120 days to give his administration time to study the detainees' cases and determine whether and how they should be prosecuted.

Although the proposed changes to the military commissions would be improvements, they do not address the fundamental concerns about the unfair nature of such tribunals, Human Rights Watch said. The very purpose of the commissions was to permit trials that would not be bound by the due process protections available to defendants in federal courts or courts martial.

Further, the previous set of military commissions was beset with problems, many of which resulted from starting a system from scratch. Defendants and their legal counsel could never be confident about the rules of procedure, which were ad hoc and untested, making the preparation of a defense difficult. For instance, the system in place to provide discovery to defendants left defense counsel without access to critical - and in some cases possibly exculpatory - evidence. Many issues became subject to myriad legal challenges, resulting in long and unnecessary delays.

The US federal courts, by contrast, have procedures that have withstood the test of time and litigation. Although critics assert that trials in US courts would jeopardize national security by exposing sensitive intelligence information, there are carefully crafted rules in place to protect identities and other sensitive information from becoming public. Sheikh Omar Abdel-Rahman, implicated in the 1993 World Trade Center bombing, and Zacarias Moussaoui, implicated in the 9/11 attacks, were tried and convicted in US federal courts.

"The US federal court system has a long history of providing fair trials in difficult cases, whereas the military commissions have a short history of botched cases," said Sullivan. "There is no good reason why the Guantanamo cases shouldn't be tried in federal courts."

In the seven years since the military commissions were announced, only three suspects have been prosecuted. The federal courts, by contrast, have tried more than 145 terrorism cases during this period.

Finally, even if the rules and procedures were radically reformed, the military commissions would not be able to overcome the taint of their past.

"After a turbulent history in which the commissions were once struck down by the Supreme Court and no fewer than six prosecutors resigned, it goes without saying that the attention on any trial by military commission would be on the fairness of the process rather than the gravity of the crime," said Sullivan "The victims of 9/11 deserve better."

US/Yemen: Break Impasse on Yemeni Returns from Guantanamo

"Many Yemenis are entering their eighth year without charge at Guantanamo. The United States can't simply hold these men because it fears they might become dangerous in the future."

Letta Tayler, Terrorism and Counterterrorism researcher

Nearly 100 Yemeni Detainees Pose Biggest Obstacle to Closing Prison

The United States and Yemen should quickly move to develop a humane repatriation plan for the nearly 100 Yemeni prisoners being held at Guantanamo Bay, Human Rights Watch said in a report released today. Unless the impasse in repatriation negotiations is swiftly resolved, the Yemenis will remain the biggest obstacle to President Barack Obama's plan to close the detention facility.

"Many Yemenis are entering their eighth year without charge at Guantanamo," said Letta Tayler, terrorism and counterterrorism researcher at Human Rights Watch and author of the report. "The United States can't simply hold these men because it fears they might become dangerous in the future."

The 52-page report, "No Direction Home: Returns from Guantanamo to Yemen," criticizes US and Yemeni proposals to transfer the detainees to a detention center in Yemen where they could continue to be held indefinitely, ostensibly for rehabilitation. Based on two weeks of field research in Yemen and more than three dozen interviews, including with former Yemeni prisoners and US and Yemeni officials, the report also warns of the potential for mistreatment in other plans being considered for the detainees.

Human Rights Watch obtained a summary of the Yemeni government's rehabilitation plan for future Guantanamo returnees, which says the men would receive counseling, medical care and job training. However, the plan provides scant detail on how authorities would decide when the men were "rehabilitated."

During meetings with Human Rights Watch, senior Yemeni officials said some returned men could be detained in rehabilitation for a year or more. Yemeni officials also said they may restrict the men's movements upon release from the center.

While insisting they would not seek unlawful detention, US officials expressed security concerns arising from returned detainees. One US Embassy official in Yemen said the proposed center should be "basically a prison facility with a programmatic aspect."

"The Yemenis' rehabilitation needs to be genuine, not a guise for continued detention without charge," said Tayler. "Moving them from one form of arbitrary detention to another is not a solution to Guantanamo."

About two-fifths of the estimated 241 detainees currently at Guantanamo are Yemeni, making them the largest national group remaining at the prison. While the United States will likely prosecute a handful of them, talks with Yemen on repatriating the rest have stalled on several issues, including US fears they might "return to the fight," because al- Qaeda's presence in Yemen has been growing. In September 2008, al-Qaeda claimed responsibility for a suicide bombing at the US Embassy in the capital Sana'a that killed 18 people.

If Washington does not work to create a repatriation plan for the Yemeni detainees, it may try to transfer them to the United States and continue to detain them without charge, Human Rights Watch said. Another option, sending some Yemenis to a locked rehabilitation center in Saudi Arabia, could also pose potential risks.

The report also details the mistreatment and neglect of the 14 Yemeni detainees from Guantanamo who have already been repatriated. Yemeni authorities jailed most of the men for a few months without charge. In the worst case, one man was held for two years and said interrogators tried to beat him into confessing he was a spy.

Some of the returnees said they suffer from both psychological and physical problems emanating from years in US custody, yet despite their unlawful detention, none has received assistance from the United States or Yemen. Stigmatized as former "terror suspects," many cannot find jobs. The men are under constant surveillance, are banned from leaving Yemen, and must report monthly to authorities.

The report recommends that the United States fund a genuine rehabilitation effort for returned detainees that includes counseling, medical care, and job training. It also calls on Yemen to let detainees challenge any restrictions and allow independent, nongovernmental organizations to monitor the repatriation process.

"Yemeni authorities should not assume these men are terrorists simply because the United States held them at Guantanamo," Tayler said. "If they feel they must monitor the detainees or restrict their movement, they have to provide the men with a meaningful legal process to contest the measures."

Human Rights Watch said that any accord between the United States and Yemen should also resolve the cases of two Yemenis whom the United States is holding without charge at Bagram Air Base in Afghanistan.

"The best way to prevent the returned Yemenis from becoming a threat is to help them reintegrate into their society and repair their lives," Tayler said.

Accounts from former detainees (pseudonyms used to protect them from possible reprisal):

"They [the Yemeni authorities] beat me with shoes. There were insults, bad words and threats. I told them, 'If you're going to torture me, it won't be anything new. The Americans already put me through torture.'"
- "Fahmi Muhammad," on being held for two years after his return in 2004.

"It's a catastrophe. I have lost a lot of things - my health, my kids' childhoods, my career, and many years of my life."
- "Malek al-Dhabi," on life since his return to Yemen in 2006.

"No one will hire me because I was at Guantanamo. ... There is a girl I am interested in, but I can't ask her father for her hand because I don't have bride money or a way to support her. Her father wouldn't dismiss me if I had a job."
- "Omar Fawza," on life since his return to Yemen in 2006.

US: Review Cases of Guantanamo Detainees Imprisoned as Juveniles

(Washington, DC) - The US Department of Justice should expedite the review and provide education and other rehabilitation assistance for five detainees at Guantanamo who have been held there since they were children, Human Rights Watch said today in a letter to Attorney General Eric Holder. The detainees were brought to Guantanamo between the ages of 15 and 17, and have now been in detention there for more than six years.

"The United States has consistently flouted its international obligations on the treatment of children in detention," said Jo Becker, children's rights advocacy director for Human Rights Watch. "Obama's team should make these cases one of its first priorities."

The five detainees are:

• Mohammed el Gharani - a Chadian who was brought to Guantanamo at the age of 15. Although a federal court ruled in January 2009 that the government's evidence is too weak to justify el Gharani's continued confinement, he remains in Guantanamo.
• Mohammad Jawad - an Afghan brought to Guantanamo at the age of 16 or 17, who has been charged with attempted murder by a military commission. He was reportedly subjected to torture and other abuse while in US custody, and has attempted suicide at least once.
• Omar Khadr - a Canadian brought to Guantanamo at the age of 15, who has been charged with murder by a military commission. Previously held in prolonged solitary confinement, he also reports having been subjected to torture and abuse.
• Mohammad Khan Tumani - a Syrian brought to Guantanamo at the age of 17, who has as reportedly subjected to physical and psychological abuse . He has not been charged with an offense.
• Fahd Abdullah Ahmed Ghazni - a Yemeni brought to Guantanamo at the age of 17. Although he was cleared by the US government to leave Guantanamo more than a year ago, he remains in detention.

US: Obama Should Reconsider New Position on Guantanamo Detainees

The Obama administration's newly issued position on Guantanamo detainees is a disappointment, Human Rights Watch said today. Rather than rejecting the Bush administration's ill-conceived notion of a "war on terror," the Obama administration's position on detainees has merely tinkered with its form.

The administration's position was disclosed on March 13, 2009 in a court filing in response to a federal judge's order seeking a definition of the term "enemy combatant."

While the filing avoided using the phrase "enemy combatant," it did not jettison the idea that persons alleged to be involved in international terrorist activities were participating in a war. The filing instead relied on closely related phrases like "members of enemy forces" and "members of an opposing armed force."

"The Obama administration's take on detainees is essentially the Bush standard with a new name," said Joanne Mariner, director of the terrorism and counterterrorism program at Human Rights Watch. "At least for now, the Obama administration is claiming the power to pick up people anywhere in the world on the grounds of support for or association with al Qaeda or the Taliban, and to hold them in military detention for what might be the rest of their lives."

The only substantive difference from the position previously asserted by the Bush administration is that if the person's link to al Qaeda or the Taliban is support, that support must be "substantial." But membership is any of those organizations remains grounds for detention.

Human Rights Watch said that the only good news in the court filing is its emphasis that the administration's position is subject to change, as its comprehensive review of detention policy takes shape. It said that any detainees at Guantanamo who are implicated in terrorist acts should be prosecuted in federal court, which have proved capable of handling even the most sensitive and complicated such prosecutions.

"We urge the Obama administration to reconsider its views," Mariner said. "The administration should be prosecuting terror suspects in the federal courts, not looking for ways to circumvent the criminal justice system."

Obama's Prisoners Dilemma

On his second full day in office, President Barack Obama signed an executive order calling for the military detention facility at Guantánamo Bay, Cuba, to be closed within a year. The question is, how? Will the Obama administration insist that all detainees be either prosecuted or released, as Human Rights Watch and other groups have recommended? Or will it effectively move Guantánamo onshore by closing the facility in Cuba but continuing to detain certain individuals without trying or even charging them?

Obama's order of January 22, 2009, leaves this question unanswered. Although the directive calls for reviewing the cases of the roughly 240 individuals still at Guantánamo to determine who should continue to be detained, it defers any decision about the grounds on which those people would be kept in custody. It does not resolve whether detainees will be prosecuted in regular federal courts, or their detention will be extended without trial, either under a preventive-detention regime authorized by Congress or based on an argument similar to the Bush administration's claim that the United States can hold "enemy combatants" for the duration of the "global war on terror."

In an article [1] published in the May/June 2008 issue of Foreign Affairs, I outlined the reasons why the criminal justice system is the best venue for prosecuting terrorist suspects, far superior to resorting to detention without trial. Under current U.S. law, the amount of evidence required to prove a suspect guilty of conspiracy to commit terrorism or of providing "material support" for terrorism is surprisingly small: to obtain a conspiracy conviction, for example, prosecutors need show only a criminal agreement between two people and one step, no matter how innocuous, in furtherance of that agreement. If the U.S. government could not make even that minimal showing, it would have little reason to believe the suspect guilty in the first place.

In addition, the fact that some of the evidence presented may touch on sensitive intelligence is no reason to eschew regular federal courts. Since the Classified Information Procedures Act was passed in 1980, the U.S. court system has acquired a great deal of experience balancing a suspect's due process rights and the government's legitimate interest in safeguarding intelligence secrets.

In contrast, a regime of preventive detention would be perilous for the liberty of U.S. citizens and others. It would enable the U.S. government to detain individuals for an indeterminate period based on predictions about the danger they might pose in the future, rather than on provable crimes that they had actually committed. Such a policy would be a radical departure from American legal traditions and a major breach in basic rights against arbitrary detention.

So far, there is no evidence that the Obama administration is inclined to go to Congress to seek authorization for a preventive-detention regime. But it may be tempted to continue to hold some detainees as "enemy combatants." To distinguish itself from the Bush administration -- which made that term infamous -- the Obama administration might argue that it intends to apply the concept less expansively. It could also maintain that the dangers of preventive detention are mitigated by the 2008 U.S. Supreme Court decision holding that all Guantánamo detainees should have access to the federal courts through petitions of habeas corpus.

But that would not be enough. Under the international laws governing armed conflict, a warring party may detain enemy combatants seized on the battlefield until the end of the conflict for the purpose of preventing them from returning to combat. Because of the limited geography of most battlefields and the relative ease of identifying combatants by their uniforms or weapons, this power historically posed relatively little danger to ordinary civilians. Many of the most significant detainees held at Guantánamo, however, were seized outside of Afghanistan, the only traditional battlefield of "the global war on terror." By pairing the designation of "enemy combatant" with the concept of a "global war on terror," the Bush administration made a case for holding detainees captured almost anywhere in the world. But with terrorists rarely distinguishing themselves from ordinary civilians, allowing the U.S. government to label someone an enemy combatant in the global war on terror has effectively meant granting it the unilateral power to detain virtually anyone anywhere, without charge or trial, and then holding him for as long as the war lasts -- that is, probably for his lifetime.

Access to habeas corpus, or the right of detainees to challenge the legality of their detention, is an inadequate safeguard against abuse. Since habeas review is not a criminal trial, prosecutors need not prove beyond a reasonable doubt that a detainee committed a specific criminal offense in order to justify his detention. If the Obama administration convinces U.S. courts to accept the concept of an "enemy combatant" in the "global war on terror" as justification for detention, the U.S. government would have to establish only the most tenuous connection between the detainees and terrorism, allowing it to shift suspects out of the criminal justice system and hold them without charge as "enemy combatants" based on weakly supported assertions. Moreover, this power would extend to the entire world, permitting the detention without charge of people in the United States and other countries with well-functioning judicial systems, such as European Union member states. Such a step would seriously undermine the rule of law. Even if the Obama administration could guard against overreach itself, a dangerous precedent would be set, allowing potential abuse by future administrations.

Some academics, such as David Cole, argue that preventive detention is not, in fact, a deviation from the U.S. legal tradition, because material witnesses in criminal cases or sexual predators who pose a public danger are sometimes held preventively. But that argument misconstrues the type of detention at issue in terrorism cases. For example, material witnesses may be held only until they have testified, not for years on end. Similarly, U.S. courts have authorized the civil commitment of sexual predators or people who are found to be dangerous to the public -- but, to avoid undermining criminal justice guarantees, the courts permit such detention only in the case of a mental illness that prevents a person from controlling his behavior. No one can pretend that this characterization applies to all the detainees at Guantánamo.

If the Obama administration continues to hold terrorism suspects without trial, it will be extending the Bush administration's policy of fighting terrorism without regard to basic rights. For much of the world, Guantánamo has become more than a detention center in Cuba. It is the symbol of the wholesale violation of the rights of those detained. The simple act of moving detainees from Cuba to federal detention centers in, say, Fort Leavenworth, Kansas, or Florence, Colorado, will not convince anyone that Guantánamo has really been closed. Only the holding of regular trials in U.S. federal courts can do that.

A prosecute-or-release policy obviously carries some risk. Some detainees who cannot be prosecuted despite the modest proof required might still turn out to be dangerous. Indeed, the Pentagon claims that some ten percent of Guantánamo detainees already released have returned to terrorism, although, according to a paper published by Seton Hall University, that number includes those who have engaged in "propaganda warfare" by speaking about their experience at Guantánamo.

But keeping Guantánamo open, whether in its current state in Cuba or effectively moved to the United States, also entails risks. The world is full of angry youth who wish the United States harm, only a handful of whom are in Guantánamo. The safety of the United States and its citizens depends primarily on whether this vast pool of potential terrorists is tapped. For more than seven years, the mere existence of the detention center at Guantánamo has been a bonanza for terrorist recruiters. At the same time, it has discouraged the kind of international cooperation needed to protect the United States and its allies against terrorism. Eliminating this potent symbol of injustice would do far more to protect the United States than would the continued detention without charge of a small number of allegedly dangerous detainees. It is time to close Guantánamo for real -- not just the place, but the entire system of detention without trial.