In a genuinely startling development in the US District Court for the District of Columbia, Judge Gladys Kessler has ruled that Mohammed Abdul Rahman, a Tunisian detainee at Guantánamo who was cleared for release after the first round of administrative reviews in 2006, “cannot be sent to Tunisia because he could suffer ‘irreparable harm’ that the US courts would be powerless to reverse,” as the Washington Post described it.
An economic migrant, who traveled to Pakistan from Italy, where he had been living, the 42-year old Tunisian, who told his Administrative Review Board in 2005 that his real name was actually Lufti bin Ali, said that he went to Pakistan for medical treatment and to find a wife. “I have told my story five hundred times,” he said. “I went to Pakistan for drugs. I was sick and I wanted to heal myself, so I went to Pakistan.” He also traveled, he said, “to get married and relax and to get out of what I was in.”
Denying a barrage of allegations about his purported involvement with terrorists and training camps, he stated that he was not involved with either the Algerian Armed Islamic Group (GIA) or the Tunisian Combat Group (TCG), and specifically denied allegations that he had participated in establishing the TCG, and was on its Advisory Council. He also denied an allegation that in Italy he had met Pakistanis from the ICI mosque (in Milan), who were attempting to recruit people to go to Pakistan and Afghanistan, denied visiting a Tunisian guest house in Afghanistan “operated by a Tunisian cell with possible ties to al-Qaeda,” and also stated that he had no knowledge of the Khaldan training camp, where, it was alleged, “a senior al-Qaeda lieutenant” identified him as having studied in 1998 or 1999. He said that he only went to Afghanistan because the Pakistan government started a campaign against Arabs (and pointed out that he was, in fact, arrested on his return to Pakistan), and retracted a confession, “admitted some time ago,” that he associated with “various amounts” of terrorists while in Jalalabad, saying, “I do not pose a threat. I am against terrorism … I am against the killing of innocent people … I live a normal life. I do not like problems. That’s it.”
What was particularly noticeable about his ARB hearing was that a whole new set of allegations had been added since his Combatant Status Review Tribunal the year before. In his CSRT hearing, it was only alleged that he “traveled to Afghanistan in 1998 and remained living in Afghanistan in 2001,” that he “stayed at an Algerian guest house on multiple occasions in Jalalabad,” that he “stayed at a guest house, which is associated with individuals who have trained at al-Qaeda camps,” and — the allegation that he refuted in his ARB — that he “associated with several terrorists,” whereas in his ARB “a senior al-Qaeda lieutenant” identified him as having trained at Khaldan, the Algerian guest house became a Tunisian guest house “possibly associated with al-Qaeda,” and Abdul Rahman became a key player in the TCG and “reportedly” the GIA. Noticeably, when he asked the Board, “These accusations, all of them, where did you get them from?” a Board Member replied, “From a compilation of interviews and interrogations and outside sources” — in other words, from other prisoners both inside and outside Guantánamo, who were either bribed, coerced or tortured to make such claims. Lest there be any doubt that the “senior al-Qaeda lieutenant” and others had made up all these claims, it’s important to remember that Abdul Rahman was cleared for release — as close as this administration, with its insistence that those it releases are not in fact innocent, but are, instead, “No Longer Enemy Combatants,” ever gets to admitting that it has made terrible, life-crushing mistakes.
To complicate matters, Abdul Rahman was convicted in absentia for fictional crimes by the dictatorship of Zine El Abidine Ben Ali, and sentenced to 20 years in prison, and would clearly be in danger if he were returned to Tunisia, which, as the US State Department notes every year, has an appalling human rights record. His situation is complicated further because of the precarious state of his health. As his lawyers, Mark and Josh Denbeaux of the Seton Hall Law School have explained, he “suffers frequent chest pains and intense heart palpitations related to [a] replaced aortic heart valve and pacemaker,” and has “many other ailments that would make a transfer to Tunisia extremely risky.”
Back in June, when two other Tunisian detainees — Abdullah bin Omar and Lofti Lagha, both economic migrants like Abdul Rahman — were returned to the country of their birth, I mistakenly thought that Abdul Rahman was one of them, but it transpires that, when government lawyers notified Mark and Josh Denbeaux in May that they were planning to send him back to Tunisia, they managed to get a court to issue a temporary restraining order. Although the government subsequently argued that the court lacked jurisdiction in the matter — and that, by extension, the administration could do what the hell it liked with the already ruined lives of wrongly detained and brutally imprisoned innocent men — it is Judge Kessler’s disagreement with this position that has saved Abdul Rahman from further horrors (accepting, that is, that one day he will be released from Guantánamo to another country).
Abdul Rahman was clearly fortunate that he had lawyers to protect him. Both bin Omar and Lagha have reportedly been treated brutally on their return to Tunisia, underlining how worthless are the “diplomatic assurances” of humane treatment that the US administration has agreed with Zine El Abidine Ben Ali, as part of its desperate and unprincipled attempts to rid itself of its own mistakes. In this, its motives overlap with those of the British government, which, like its partner in the “special relationship,” is busily engaged in compounding its initial illegal activities — holding men indefinitely without charge or trial — with further illegality, as it attempts to break international laws again by signing “diplomatic assurances” and “memoranda of understanding” with the dictators running various North African and Gulf countries (including Tunisia), which are both worthless and illegal.
Recognizing this, and also acknowledging that the looming Supreme Court showdown over detainees’ rights is beginning to filter down to the lower courts, Judge Kessler explained, as she dared to put down the government, that she had made her decision because the Supreme Court’s decision to look once more at the detainees’ rights “cast a deep shadow of uncertainty” over previous rulings restricting their rights. “In view of the grave harm Rahman has alleged he will face if transferred,” she continued, “it would be a profound miscarriage of justice” if the court denied his petition to remain in Guantánamo. Noting that the Supreme Court could eventually decide that the detainees had the right to challenge their detention or their transfer to other countries, she added that an injunction preventing his return was “necessary to ensure his survival.” Otherwise, she concluded, “At that point, the damage would have been done.”
Exulting in what the New York Times described as a judgment that “appears to be the first ruling of its kind,” Josh Denbeaux praised Judge Kessler’s actions, stating, unequivocally, “This is the first time the judicial branch has exercised its inherent power to control the excesses of the executive as to treatment of prisoners at Guantánamo Bay. The executive has now been told it cannot bury its Guantánamo mistakes in Third World prisons.”
Like decisions made by appeal courts in the UK, preventing the illegal return of men who have never been charged to regimes that may well torture them, Judge Kessler’s principled decision is being seen as a mortal blow to the US administration’s attempts to do the same with innocent men, held without charge or trial in Guantánamo. And it augurs well, I think, for the coming Supreme Court showdown over the detainees’ rights to challenge the basis of their detention. Nearly six years of arrant lawlessness and injustice on the part of the executive is more than enough. Let those detainees against whom the administration thinks it has a case be pursued in a recognizable court; and let the others — the ones against whom no case can be built, because there is none — be freed, to countries that will not subject them to further torture or ill-treatment.
ANDY WORTHINGTON is a British historian, and the author of ‘The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison’ (to be published by Pluto Press in October 2007).
He can be reached at: firstname.lastname@example.org