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 flouting 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 2010, 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.



27 Comments

God weeps.
Why?
Are the prisoners at Gitmo only from the Bush era or does the Obama administration replenish the supply?
That’s a great question. How do we find out? Get out your Sherlock hat, gf.
Thanks, Jeff. I’m so ignorant about this I just don’t know anything intelligent to write.
this complete lawlessness is the main reason i won’t be getting my citizenship even on O’s watch…that and the torture…and the illegal wars…i will just keep renewing my green card since there is no rule of law left in this country. American jurisprudence is a bad joke.
I wonder if Obama is a free agent in all this. We don’t actually know who is running the show. The lawlessness that is associated with his government is hard to square with his public (and I believe private) persona. There is a lot here that doesn’t meet the idea. We actually don’t know who run our country.
Hasn’t that been the case for a long time?
I got out in 1969 after Nixon was elected. Every time I return to Canada I feel like I have come back to a free country. I used to feel that way when I got off the train from Leningrad in Helsinki. Go figure.
That’s really the question, isn’t it?
Ironically, it comes on the same day that Obama released his signing statement on the transfer ban re Guantanamo.
http://www.whitehouse.gov/the-press-office/2011/01/07/statement-president-hr-6523
Perhaps these two events are related.
He may not be a free agent, but he is a responsible actor, and he must take responsibility for his decisions.
We must also regard him as if he were a free agent, because otherwise, one starts down the slippery road of making excuses.
If we don’t want him back in Algeria or remaining in Guantanamo, what should we be pushing for? Settling here? Actually, I’m in favor of that — we owe these people — and believe some organization has recently sprung up to try to make that happen, although the political odds are long.
Is there somewhere else he’d want to go? Actually, in his case, I guess it’s a moot point now, but what would be a fair and humane system for sorting these people out?
Jeff, You have cut short worthington’s statement and changed the meaning.
Worthington:
And as Emptywheel points out, Congress hasn’t prevented Obama from doing anything he doesn’t want to do.
Empty Wheel: shorter ACLU: “But if Obama interprets the law to limit all expenditures on detainee transfers, the letter continues, then it would be an unconstitutional Bill of Attainder.”
This confuses the issues of transfer for forceable repatriation, DOJ trials, and keeping them as a refugee.
“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.””
The United states belongs to the group of States which have Signed but not yet Ratified the Convention Against Torture
On the other hand Algeria is one of the States which have Ratified the Convention Against Torture and made declaration, under Article 22, that they agree to allow individual complaints to the Committee against Torture.
Do we know that this man will actually be treated worse than he is at GTMO? We have made a science out of torture. What is to become of him? Will he be released?
That is simply not true. The U.S. has signed and ratified the Convention Against Torture. It was ratified in 1994, and implemented as the Torture Act, Title 18 Sect.2340 in the U.S. code, and the Torture Victims Protection Act, Title 28, Sect.1350.
There isn’t much excuse for illegal refoulement. It’s not only banned by the CAT, it’s banned under the 1951 Refugee Convention and it’s 1967 Protocol, the U.S. is a signatory of the latter, and the non-refoulement principle is customary international law. It’s also in the 4th Geneva Convention, which should apply because this person was deemed by the court to be a civilian (Article 45(2)). These are all conventions the U.S. has ratified.
No excuse.
Sorry, that would be 4th Geneva Convention Article 45(4), not (2).
I didn’t get Andy wrong, I just indelicately took a previous quote and left off the phrase you noted because the situation had changed since he wrote the sentence I quoted. The sense of the sentence I wrote is correct. But, because I wrote this article at work and didn’t have time to look up a newer quote, I went with my own edit. I’m sorry if this confused you.
As Andy pointed out in an essay on Dec. 28, the Congressional ban was extended to include trials (and it is to this that Marcy speaks re the bill of attainder aspect). Anyway, here’s the latest from Mr. Worthington, by way of explaining the current situation:
Yes, I believe he should be granted political asylum in the United States, and given compensation for his false imprisonment and torture. That is true of any detainee for whom there is no chargeable offense. If they prefer another country, and that country would take them — and I believe they would if the U.S. would pay some compensation and admit publicly their mistake in imprisoning the person, then the former detainee could go there.
This is just basic justice, much as would be done after a case of false imprisonment in this country.
Thanks for mentioning the Geneva prohibition. I hadn’t known that, but do now.
What? No links?
I used the link in the post.
And I don’t make excuses for the government, thanks.
The long version is here.
http://www.icrc.org/eng/assets/files/other/irrc-871-droege2.pdf
She discusses 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).
Neither do I. Here is the UN list of ratifiers of CAT.
http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-9&chapter=4&lang=en
Here’s the 4th Geneva Convention:
http://www.icrc.org/ihl.nsf/FULL/380?OpenDocument
You can scroll down to Article 45 section 4, where it says,
“In no circumstances shall a protected person be transferred to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs.”
I assume you already know the Convention prohibits torture, and that all countries in the world have signed and ratified it.
The right thing to do is set the ones we have wronged with a new life, a new house, education, a car, some money and a true apology.
That would mean looking backward, admitting that our government did something wrong..
OTOH if you’re in the terrorist creation business, then he might be considered a success someday.
It WOULD be basic justice — the problem, of course, is that our ruling elite needs to keep these people isolated from American society and discourse, as they’re the fearsome “other” which justifies the increasing police state we’re living in.
Can you imagine one or more of these guys on Larry King or something like it? Humanizing them, seeing them talk about the Nazi-like war crimes to which they’ve been subjected…our ruling elite will move heaven and earth to keep that from happening.
Again, there’s apparently some new group, with chapters in Berkeley, Pittsburgh and maybe a few other places, which is dedicated to trying to resettle Gitmos here. For the life of me, I can’t find their website, though.
Ask him where he wants to go. Drop him there with a suit case full of money.
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.
“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):
A glimmer of genuine U.S. justice for Farhi bin Mohammed. And then…
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:
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:
Thanks so much, powwow, for amplifying the facts and meanings of this event. Kessler’s comments on Binyam Mohamed’s torture is both important and incredibly affecting to read. I think I’ll post my comment on my blog, for those few readers these days who hunt out such things as anti-torture blogs.
And thanks, too, for catching the typo on the date. I’ve fixed it.