In the Obama administration’s campaign to persuade other countries to rehouse prisoners from Guantánamo who have been cleared for release, but who cannot be repatriated because of fears that they will be tortured if returned to their home countries, progress has been slow.
Why European nations are reluctant to accept cleared Guantánamo prisoners
Despite an apparent accord being reached on June 15, when the European Union and the United States made a joint statement in Luxembourg on the closure of Guantánamo, which, as the Guardian described it, “cleared the last hurdles for up to 50 Guantánamo detainees to be accommodated in EU countries,” no one has been released in Europe in the last two months, and the number of prisoners welcomed into any European countries since Obama came to office is just two: Binyam Mohamed, the British resident, notoriously subjected to “extraordinary rendition” and torture, whose release in February appears to have been designed (not entirely successfully) to fend off further legal challenges and embarrassing revelations regarding his treatment; and Lakhdar Boumediene, an Algerian cleared by a US judge in his habeas corpus hearing last November, who was resettled in France in May.
Of course, one explanation for the reluctance of European countries to accept cleared prisoners from Guantánamo is that European governments are regularly hearing American politicians wailing from the Dick Cheney songbook about how dangerous everyone in Guantánamo is, when the truth, of course, is that they were mostly rounded up for bounty payments, and have never had the allegations against them tested in any meaningful manner for the last seven and a half years.
To understand the truth about Guantánamo, European governments should be looking closely at the only venue in which the politicians’ scaremongering has actually been tested: in the District Courts hearing the prisoners’ habeas corpus appeals, where, since last June’s Supreme Court ruling granting the prisoners constitutionally guaranteed habeas rights, judges have so far established, in 28 of the 33 cases on which they have progressed to a ruling, that the government has failed to establish, “by a preponderance of the evidence,” that it has any right to hold the men. The full, embarrassing story can be found in two overviews here and here, and in the more recent cases of the Yemeni Alla Ali Bin Ali Ahmed (seized in a house raid in Pakistan), the Syrian Abdul Rahim al-Ginco (tortured by al-Qaeda as a spy), the Afghan Mohamed Jawad (tortured by Afghan and US forces), and the Kuwaiti charity worker Khalid al-Mutairi.
However, the Obama administration has not been trumpeting the courts’ victories — primarily because its own Justice Department has been responsible for putting forward feeble and unwinnable cases, which have been the object of judicial scorn, and has also been enraging the judges by persistently preventing defense attorneys from having access to exculpatory material — but also because the President himself has refused to take the lead in rehousing innocent men who were wrongly imprisoned in Guantánamo. He could have done this by bringing the Uighurs (Muslims from China’s oppressed Xinjiang province) to live in the United States in his early days in office, and his failure to do so is one of the main reasons that Dick Cheney and his followers were able to start peddling their distorted propaganda.
While such spinelessness only sends out a hypocritical message to those in Europe who are being asked to clean up America’s mess instead, I was heartened to hear, two weeks ago, that the Irish government has agreed to accept two Uzbek prisoners, who have been cleared for release for many years (including Oybek Jabbarov, a blameless refugee who was sold to US forces), but this good news has been tempered by another disturbing trend that is only just becoming apparent.
A disturbing trend: “rendering” Guantánamo prisoners to European jails
This trend involves not freeing the former prisoners on their transfer to European countries, as the Irish government proposes, but imprisoning them instead. I first reported on this development last month, in my article, “Italy’s Guantánamo: Obama Plans ‘Rendition’ Of Tunisians In Guantánamo To Italian Jail,” which dealt with the probable fate of three Tunisians in Guantánamo, and on Wednesday, on the website The Lift, Mathias Vermeulen reported exclusively that a similar plan has been hatched for dealing with two other Tunisians in Guantánamo.
Vermeulen explained that he had learned that the two prisoners — Adel Hakeemy and Hisham Sliti — are to be sent to Belgium on October 6, and that, on arrival, it is probable that they will be taken into custody because they were convicted in absentia “on charges of terrorism, forgery, the use of false documents and the formation of a criminal association.”
The problem with this proposal, of course, is that it enters new and disturbing legal territory. With regard to the Italian proposal, for example, a source in the United States explained that this approach to disposing of prisoners in Guantánamo is actually a form of “rendition,” and the same analysis applies to the Belgian proposal. In addition, although there has not yet been any word from the Belgian government about whether or not it will take into account the seven and a half years that both men have spent in Guantánamo, the Italian government suggested that, in the cases of the three men it was proposing to accept, these lost years would count for nothing.
The stories of Adel Hakeemy and Hisham Sliti
Moreover, the Belgian proposal is also disturbing because one of the men — Adel Hakeemy — was approved for transfer from Guantánamo by a military review board at Guantánamo under the Bush administration, which only happened because the military concluded that he no longer represented a threat to the United States or its allies. Although the US military has claimed that he was involved in a training camp near Jalalabad, Hakeemy has always denied any involvement in militancy in Afghanistan — or any connections with al-Qaeda or the Taliban — and his lawyers at Reprieve, the legal charity, have explained that he traveled to Pakistan to get married and was living in Jalalabad, near his wife’s family, when the US-led invasion began in October 2001.
Moreover, Hakeemy’s connection with Europe is based not on an association with Belgium, but on the eight years that he spent in Italy, where, it appears, he was not suspected of any involvement with terrorism (and is therefore not a candidate for being rehoused by the Italian government, which is interested only in Guantánamo prisoners against whom it claims to have proof of involvement in terrorist activities). As I explained in an article last year,
Far from being a militant, he was in fact a chef, and had lived in Italy for eight years, working as a chef’s assistant in several hotels in Bologna. “I lived with Italians in their homes,” he told Cori Crider of Reprieve during a visit at Guantánamo [in May 2008]. “I am used to their culture. The Italians worked alongside me, they respected me, they treated me as their brother.”
In the case of Hisham Sliti, the story is rather more complicated, because, last December, when US District Court Judge Richard Leon reviewed his habeas corpus petition, he ruled that he could continue to be held as an “enemy combatant,” because he was “part of or supporting Taliban or al-Qaeda forces.” Judge Leon’s ruling was based on claims made by the US government that Sliti traveled to Afghanistan as “an al-Qaeda recruit … at the expense of known al-Qaeda associates and on a false passport provided to him by the same,” that he stayed in a guest house and a mosque, and attended a training camp, which also had connections to al-Qaeda, and that he was “instrumental” in “starting a terrorist organization with close ties to al-Qaeda”. However, as I reported at the time,
The problem with all of these allegations is that Sliti’s story actually suggests that all these conclusions are based on guilt by association. He may well have been connected with others who were involved in or interested in terrorism, but his own trajectory is that of a junkie rather than a jihadist, or, if you prefer, a tourist rather than a terrorist. Judge Leon disregarded Sliti’s own claim that he went to Afghanistan “to kick a long-standing drug habit and to find a wife,” but it was certainly true that he had been a drug addict in Europe (where he had been imprisoned in various countries on several occasions), and, as his lawyer Clive Stafford Smith has explained, he has a worldly cynicism that is fundamentally at odds with the fanatical rigor of al-Qaeda.
As Reprieve explained last year, Sliti, who had arrived in Italy in 1995, and had spent time working on fishing boats, stated in 2007, “If I went to Afghanistan I would be a long way from the haunts where I could get drugs. It would be a chance to make a fresh start, a clean break. I thought I could study my religion, and hopefully I might be able to afford to get married and settle down. I emphatically did not go to Afghanistan to fight for the Taliban or for anyone else.” As Reprieve also noted, he was particularly disappointed by life in Afghanistan. “I hated life under the Taliban,” he explained, complaining that he “found the culture as oppressive as the heat: he couldn’t meet women, couldn’t smoke cigarettes — as an unmarried man, he couldn’t even rent a house.”
In a review board at Guantánamo, he was even more blunt. “I didn’t care for the country,” he told the panel of three officers. “It was very hot, dusty and [the] women were ugly. The atmosphere and environment didn’t agree with me.”
In his article on Wednesday, Mathias Vermeulen suggested that, until the Obama administration decided to transfer Sliti to Belgium, he was one of the prisoners regarded as being a candidate for the policy of “preventive detention” that the administration has been floating, to the horror of lawyers, human rights activists, and anyone else opposed to attempts to legitimize holding people without charge or trial.
Is justice possible for Tunisian prisoners in Guantánamo?
As I await more details of the Belgian proposals, I can only point out that, although Hisham Sliti’s transfer to Belgium may be preferable to having his indefinite detention fought over for years in the US courts, the least that he and Adel Hakeemy deserve, after their long ordeal without charge or trial in Guantánamo, is to receive a fair trial in Belgium, and to have their time in Guantánamo taken into account.
Their in absentia convictions in Belgium were based on their association with one of Hisham Sliti’s relatives, Amor Sliti, a Belgian citizen who had also been living in Afghanistan at the time of the US-led invasion. Amor Sliti escaped the Guantánamo dragnet, and was seized in Amsterdam and extradited to Belgium after flying in from Tehran in February 2002. In September 2003, he was sentenced to five years in prison for supplying false documents and being involved in a terrorist plot in Belgium.
However, given the length of this sentence (less than the time already served in US custody by Adel Hakeemy and Hisham Sliti), and the doubts about the involvement of either man in any kind of militant activity, I can only reiterate that I fail to see how the “rendition” plan agreed between the US and Belgian governments can be regarded as acceptable unless it contains guarantees that both men will face a fair trial on arrival in Belgium and, in the event of a conviction, will also have their prior imprisonment in Guantánamo taken into account.
Anything less, and it may be appropriate to conclude that the state of justice is so frayed in the West that both men might have been better off taking their chances with the dictatorship of Zine El Abidine Ben Ali in Tunisia, where, in 2007, two cleared Guantánamo prisoners who were repatriated — Lotfi Lagha and Mohammed bin Omar — were reportedly abused in Tunisian custody and then received prison sentences of three and seven years respectively after trials condemned as “show trials” by observers. Just prior these sentences, a US District Court judge, Gladys Kessler, was so disturbed by news that Lagha and bin Omar had been mistreated that she acted to prevent a third Tunisian from being returned. This ruling dealt a knockout blow to the “diplomatic assurances” negotiated between the US and Tunisian government, which purported to guarantee that returned prisoners would be treated humanely, but nearly two years later, the story of Adel Hakeemy and Hisham Sliti — and the cases of the three Tunisians earmarked for imprisonment in Italy — indicate that the legal distortions of the “War on Terror” are still wreaking havoc on the lives of those trapped in its baleful shadow.
POSTSCRIPT AND CORRECTION: Mathias Vermeulen has updated the story, reporting that the request for Adel Hakeemy and Hisham Sliti to be sent to Belgium was actually initiated by two Belgian lawyers, who requested their “immediate extradition,” based on their in absentia convictions in 2003. Vermeulen explained, “The spokesperson for the Belgian Ministry of Foreign Affairs formally declared that the transfer of the two Tunisian detainees was not requested by the Belgian state, but by the detainees’ two lawyers (who requested the federal prosecutor to issue an international arrest warrant so they could be extradited to Belgium.) The lawyers thought there was a good chance that both detainees would be sent to Belgium by the 6th of October, which is the date of the new trial.”
He also explained that the Belgian lawyers pointed out that “the federal prosecutor made a mistake by not asking an arrest warrant for the two in 2003,” stating, “If it appears that the federal prosecutor in 2003 — or even earlier, during the judicial investigation — had knowledge of the torture and ill-treatment Hakeemy and Sliti were subjected to, the federal prosecutor could be held responsible,” even though it is extremely unlikely that the Bush administration would have consented to the extradition of either man in 2003.
Even now, it is uncertain whether the Obama administration will consent to the extradition of either man — but particularly Hisham Sliti. As Vermeulen also noted, “The case of Hakeemy wouldn’t pose a problem, as he was not regarded as an ‘enemy combatant’ by the US. Sliti’s case is different however: he is regarded as an ‘enemy combatant’, which means he cannot be extradited.” He also explained that the cases of the two men were unrelated to Belgium’s ongoing negotiations to take two other prisoners from Guantánamo, “who are likely to come to Belgium in September.” Unlike Hakeemy and Sliti, it is expected that these two as yet unidentified men will be able to apply for asylum, “after which they are likely to be recognized as refugees.”
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and also see my definitive Guantánamo prisoner list, published in March 2009.
I already posted an update of the story here: http://legalift.wordpress.com/2009/08/13/belgian-lawyers-ask-extradition-of-two-tunisian-guantanamo-bay-detainees/
The spokesperson for the Belgian Ministry of Foreign Affairs formally declared yesterday that the transfer of the two Tunisian detainees was not requested by the Belgian state, but by the detainees’ two lawyers (who requested the federal prosecutor to issue an international arrest warrant so they could be extradited to Belgium.) The lawyers thought there was a good chance that both detainees would be sent to Belgium by the 6th of October, which is the date of the new trial.
It seems therefore that Obama nor the Belgian state wasn’t planning any specific ‘rendition’, but that the request for transfer is a lawyer’s initiative on behalf of the detainees. There’s no news from the US government yet. But if it comes it’s very likely they will send over Hakeemy, but not Sliti I think.
More to come soon!
Thanks, Mathias. Postscript and correction added!
[…] “The Questionable Fate of Two Tunisians” The Guantánamo Docket, New York Times/NPR Belgian government ponders extradition request for two Tunisian Guantanamo detainees The Lift Posted on February 23, 2012 by Eric Allan ← Nabil Hadjarab Adel al Hakeemy → […]
[…] argue that the allegations are false, and are based on testimony extracted through torture, but since last summer, there have been rumors that he and Sliti might be extradited to […]
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