[NYTr] A Gitmo Gulag Captive Finally Gets a Break

[All the News That Doesn't Fit]

Counterpunch - Oct 15, 2007
http://www.counterpunch.org/worthington10152007.html

A Gitmo Detainee Finally Gets a Break

Judge Stops Bush Administration from Returning 
an Innocent Tunisian to Torture

By ANDY WORTHINGTON

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: andy at andyworthington.co.uk ]