The Ongoing Plight of the “Algerian Group”
Maureen T. Duffy, 17.02.2009, (0)
The author writes about the echoes of the so called Algerian Group case in the U.S., about the situation of the three men who remain in Guantánamo, and about the responsibilities, obligations, and possibilities for the engagement of the Bosnian government in ensuring their prompt release.
Tags: foreign policy | judiciary | state responsibilities
The author writes about the echoes of the so called Algerian Group case in the U.S., about the situation of the three men who remain in Guantánamo, and about the responsibilities, obligations, and possibilities for the engagement of the Bosnian government in ensuring their prompt and safe release.
Introduction
In November 2007, Pardiss Kebriaei wrote an interesting article, examining the plight of six men, all Bosnian citizens or residents, who had been held at Guantánamo Bay for approximately six years with no trial. At the time of her article, challenges to the detentions, and to the conduct of the Governments of Bosnia and Herzegovina, and of the United States, were pending before the European Court of Human Rights (ECHR) and before the United States Supreme Court.
Ms. Kebriaei’s article gives an excellent summary of the circumstances under which these men, all originally Algerian, had come to be in U.S. custody, and reference to her article is made for that background. From the beginning, serious questions have been raised, and are ongoing, as to the conduct of both governments in these detentions.
Since Ms. Kebriaei’s article was published, however, there have been significant changes in the status of the six men, referred to in this article as the “Algerian Group,” and also commonly called the “Algerian Six.”
A U.S. federal court has ordered that five of the men be released from Guantánamo Bay. As of early 2009, three of them, Mustafa Ait Idir, Hadj Boudella, and Mohamed Nechla, are back home with their families, having landed in Bosnia and Herzegovina in mid-December 2008. To date, the Bosnian Government has not pursued any criminal charges against them, and, rather, released them after a brief detention on their arrival.
It is hoped that two others, Lakhdar Boumediene and Saber Lahmar, may soon follow. Their cases appear to be more complicated than those of the three who were returned to Bosnia. Some sources have reported that they do not currently possess Bosnian citizenship, indicating that Mr. Lahmar was a permanent resident, but not a citizen, of Bosnia and Herzegovina, and Mr. Boumediene had previously had his Bosnian citizenship revoked. If, indeed, that is the reason for their continued detentions, it raises serious concerns, since both men do hold Algerian citizenship. At least two Guantánamo Bay inmates, unrelated to this case, were released to Algeria, where it was initially reported that they had disappeared.
Concerns have been raised about the safety of other Guantánamo detainees if they are repatriated to Algeria, and allegations have been made against Algeria relating to secret detentions and torture of terrorism suspects. Various human-rights organizations have urged Bosnia and Herzegovina to pursue diplomatic means to urge the U.S. Government to return the remaining members of the Algerian Group to Bosnia and Herzegovina.
Belkacem Bensayah remains at Guantánamo Bay, and, after approximately seven years of detention, still has faced no criminal charges or a trial1. It is unclear what the future holds for him, particularly in light of the recent Executive Order from the new U.S. President, Barack Obama, to close the infamous detention camp in the next year.
The U.S. Supreme Court Takes the Bush Administration to Task
This change in circumstances for the other five men came about as a result of a landmark decision by the U.S. Supreme Court. Lakhdar Boumediene gained considerable fame within the United States as the named party in the decision, Boumediene v. Bush, which addressed the rights of Guantánamo detainees to pursue habeas corpus challenges to their detentions before U.S. federal courts2.
Habeas corpus, or the “Great Writ” as it is sometimes called, stems from the English common law system, and is widely cited as dating back to the Magna Carta of 1215. It allows a prisoner to challenge the circumstances of a detention, and it is considered a protection against arbitrary government detention.
In the U.S., the notion of habeas corpus is deemed especially important, because it is one of the few individual-rights protections contained within the original U.S. Constitution – most protections of individual rights can be found in the Bill of Rights as constitutional amendments. (Boumediene, p. 8). Under the U.S. Constitution’s Suspension Clause, the right of detainees to seek habeas relief cannot be suspended except under highly specific circumstances.
In Boumediene, the Court ruled that the Military Commissions Act of 2006, which stripped Guantánamo detainees of habeas recourse to U.S. courts, was an unconstitutional violation of the Suspension Clause. In so ruling, Justice Kennedy began his opinion with an extensive review of the history of habeas corpus, both in the English common law system, and within the development of U.S. constitutional law. (Boumediene, pp. 8-22).
What distinguishes the Boumediene ruling from the two prior U.S. Supreme Court rulings relating to Guantánamo Bay is that the Court based its latest ruling, not on statutory provisions regarding habeas corpus or the rules surrounding wartime detentions, but on the U.S. Constitution. As was briefly explained in the decision, the Bush Administration had responded to the prior two rulings by enacting legislation or procedures essentially invalidating the Supreme Court rulings (Boumediene, p. 8).
The practical impact was that the back and forth between the Court and the Bush Administration (and the U.S. Congress) resulted in egregious delays in the cases of the Guantánamo detainees. By finally relying on the Constitution in ordering the U.S. Government to grant habeas rights to Guantánamo detainees, the Supreme Court stepped into its role as interpreter of the Constitution, and left little option for the Bush Administration but to comply – so hearings of these petitions before federal courts finally began.
In Boumediene, the Court ruled that the detainees do, indeed, have recourse to seek habeas corpus relief under the U.S. Constitution in U.S. courts, and that they are not barred, either by the U.S. Government’s designation of them as “enemy combatants,” or by the fact that they are being arguably detained outside of the territorial jurisdiction of the U.S. In acknowledging that the U.S. Government has a legitimate need to advance its security interests, the Court reminded the other branches of government: “Security subsists, too, in fidelity to freedom’s first principles.
Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers.” The Court noted that some of the petitioners had been in custody for six years, without any “definitive judicial determination as to the legality of their detention,” and that it was thus necessary for them to have access to the writ, regardless of the outcome of their applications. (Boumediene, pp. 68-69).
Aside from the obvious impact this case has on the lives of the men involved, it also was remarkable from a legal perspective within the U.S. Some scholars have hailed this case as groundbreaking, suggesting that it sheds new light on the reach of the U.S. Constitution. Georgetown University Professor David Cole, for instance, suggests that the case represents a notion of “transnational constitutionalism,” beyond anything expressly recognized before the ruling. Other scholars seem to agree that the case has profound implications for the reach of the U.S. Constitution’s protections, such as Jean-Marc Piret and Gerald Neuman. Alternatively, some may see it as more of an internal battle, defining the parameters of how far another branch of government can restrict the federal courts’ jurisdiction. It is certain that the significance of this ruling will be debated for some time to come.
A U.S. Federal Court Finds Insufficient Evidence to Justify Holding Five of the Men
Once the Supreme Court determined that the detainees had the right to pursue habeas proceedings, it was left to the federal district courts to hear the actual petitions, and to rule on the validity of the detentions. It was somehow fitting, therefore, that one of the first federal court cases to follow the Supreme Court ruling, and to involve a ruling on a habeas petition for Guantánamo detainees, should involve Boumediene himself, as well as the other five of the Algerian Group – Boumediene v. Bush.
On November 20, 2008, Judge Richard Leon ruled that the evidence was insufficient, for five of the men, to justify their designation as “enemy combatants.” The exact definition of “enemy combatant,” or even whether such an entity exists, has been central to the debate to many of the U.S. Government anti-terrorism policies. For the purpose of these cases, Judge Leon defined an “enemy combatant” as “an individual who was part of or supporting Taliban or al-Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.” (Boumediene Transcript, pp. 14-15).
He ordered the five men released, and stated his ruling in such strong terms that, when he announced it in court, he urged the U.S. Government not to appeal from his decision, saying, according to a transcript of the proceedings, “[s]even years of waiting for our legal system to give them an answer to a question so important, in my judgment, is more than plenty.”
The ruling was remarkable for a number of other reasons. Judge Leon was appointed to the Bench by U.S. President George W. Bush, and is, in fact, the judge who initially ruled that Guantánamo detainees did not have recourse to U.S. courts, thus leading to the U.S. Supreme Court case of Boumediene v. Bush, as Judge Leon himself explained in his subsequent ruling that five of the men must be released. (Boumediene Memorandum Order). He had gained a reputation for ruling in a way that appeared sympathetic to the U.S. Government’s practices.
In this case, however, the Supreme Court's ruling had opened the door for judges to examine, for the first time, the actual evidence serving as the basis for detaining Guantánamo prisoners. Judge Leon's task, in a habeas proceeding, was to examine this evidence, including the classified evidence, under a very low standard of review. To order continued detention of the men, he had to simply find that there was a preponderance of the evidence justifying the Government's allegations – a far cry from the standard of proof of beyond a reasonable doubt, which would be applied in a criminal trial before a U.S. court. (Boumediene Memorandum Order, p. 8).
As to the five, Judge Leon noted that the Government was relying solely on the claim of one source, who was unidentified in the documents presented to the court. Judge Leon noted that he did not have enough evidence to determine the credibility of the source. Absent, as well, was any corroborating evidence to support the allegations of the sole source. Judge Leon therefore ruled that the Government had not shown, by a preponderance of the evidence, that the men had a plan to travel to Afghanistan to work with Al Qaeda. Because the evidence shown to the judge was classified, he said he could not be more specific as to the evidentiary shortcomings.
He noted, though, that a determination of “enemy combatant” status could not rest on “so thin a reed,” and would be inconsistent with the Court’s obligation to protect the five from the risk of erroneous detention. Judge Leon hastened to add, however, that the facts of this particular case were unusual, and that it could not be assumed that findings in this case applied to other detainees’ cases. He also clarified that, while he could not elaborate on information in the classified documents before him, the information may have been adequate for intelligence purposes, but was not adequate for the purpose of a habeas proceeding challenging a detention. (Boumediene Memorandum Order, p. 11).
The U.S. Government had made somewhat different allegations against Belkacem Bensayah, claiming that he not only planned to travel to Afghanistan to join Al Qaeda, but that he was an actual “facilitator” of Al Qaeda. Judge Leon determined that the evidence of the sole informant, referred to in relation to the other five detainees, was adequately corroborated in the case of Mr. Bensayah by other sources of information, justifying his continued detention. While stating, again, that much of the information could not be discussed because it was classified, Judge Leon said that the Government had met the standard needed for the purpose of the habeas proceeding to link Mr. Bensayah to Al Qaeda, and, specifically, to a senior member of Al Qaeda, as well as of Mr. Bensayah’s ability to travel across countries under false names and passports.
Finally, he found that the Government had raised sufficient doubt as to Mr. Bensayah’s offered explanation for his activities. Judge Leon therefore ruled that it was established, by a preponderance of the evidence, that it was “more likely than not” that Mr. Bensayah planned to take up arms against the U.S., and also to facilitate others in doing the same. Judge Leon concluded that Mr. Bensayah was being lawfully detained as an enemy combatant, and denied his petition, declining to order his release. (Boumediene Memorandum Order, pp. 12-13).
The Evolving Allegations
Judge Leon's ruling represents a strange twist in an already strange story. The U.S. Government has attempted to justify holding the men for seven years, without traditional judicial proceedings, by suggesting, as it alleges for all detainees at Guantánamo Bay, that the men there are unusually dangerous. Moreover, the penchant for secrecy, which has characterized much of the U.S. Government's conduct in the “War on Terror”, has made it difficult for the men involved to seek their freedom.
But even amidst such claims, and in spite of the extreme secrecy surrounding specifics of their detentions, the allegations surrounding these six men have been unraveling for some time. The initial claims, under which the U.S., purportedly with the collusion of Bosnia and Herzegovina, arrested the men, involved a supposed plot to bomb the U.S. Embassy in Sarajevo. It was on the basis of this allegation that the men were initially held in Bosnia and Herzegovina, and subsequently released there by a court order because there was no evidence to support detention on that allegation. After their release, U.S. authorities seized them.
In his 2002 State of the Union Address, U.S. President George W. Bush said, regarding these six men, "our soldiers, working with the Bosnian government, seized terrorists who were plotting to bomb our embassy [in Sarajevo]." (See article by Robert Fisk, The Guardian). In late 2008, roughly seven years after the men were initially detained at Guantánamo Bay, the U.S. Government quietly dropped that allegation. (See Boumediene Memorandum Order, p. 3). The men were still held, though, because the U.S. Government continued to insist that they had a plan to go to Afghanistan to join Al Qaeda (with an additional allegation, as described above, for Belkacem Bensayah). (Boumediene Memorandum Order, p. 3). It was this overall lesser set of allegations that had been presented to Judge Leon. In five of the six cases, the U.S. Government was not able to even meet a reduced evidentiary standard on the lesser allegations.
The flimsy nature of the evidence used to hold at least five of the “Algerian Group” raises questions as to whether the court system was avoided because the U.S. Government simply could not prove its allegations. It is also notable that, while much of the evidence regarding Mr. Bensayah was classified, and thus not subject to analysis by an outside observer, Judge Leon only had to find, in his case, that the evidence made it “more probable than not” that the U.S. Government’s allegations regarding him were true.
His having found that to be so does not, however, mean that there is sufficient evidence for a criminal conviction, and the U.S. Government’s continued refusal to allow his case to be heard before a court raises questions as to whether it could, indeed, prove its case against him in a full criminal proceeding. And, yet, these men were held for seven years, under conditions that can only be described as appalling, and Mr. Bensayah continues to face potentially indefinite detention. Additionally, since the highly controversial Combatant Status Review Tribunal at Guantánamo had previously deemed the men to be “enemy combatants,” Judge Leon’s ruling calls into question the validity of that review process as well, suggesting that it is not an adequate substitute for a proper court hearing.
The Alleged Failure of Bosnia and Herzegovina to Protect Its Citizens and Residents
Questions also remain as to the culpability of the Government of Bosnia and Herzegovina, both in the initial detentions of all six men, and in their continued detention for so many years. As Ms. Kebriaei describes in her article, many countries with nationals held at Guantánamo Bay have advocated for their release, usually with ultimate success.
Ms. Kebriaei’s point, that Bosnia and Herzegovina could do more to advocate with the U.S. on this matter, is strongly and persuasively presented. She describes, in her article, an important case pending before the ECHR, relating to these six men. Since her article was published, however, the ECHR ruled in Boumediene v. Bosnia and Herzegovina that the applications of the men were manifestly ill-founded and must be rejected. It thus appears highly unlikely that Bosnia and Herzegovina will face legal pressure to continue to advocate for the release of the remaining detainees, or that it will face potential culpability for its own role in the initial detentions. The ECHR said, in making its ruling:
“… taking into consideration subsequent developments and, in particular, the assurances obtained by the BH authorities that the applicants would not be subjected to the death penalty, torture, violence or other forms of inhuman or degrading treatment or punishment [..] the Court concludes that Bosnia and Herzegovina can be considered to be taking all possible steps to the present date to protect the basic rights of the applicants, as required by the domestic decisions in issue.” (para. 67)
Some bases for the ECHR ruling appear questionable, especially since it emphasizes the assurances of the U.S. Government that the applicants would not be subjected to “torture, violence or other forms of inhuman or degrading treatment or punishment.” It is apparent that any such assurances are meaningless in light of long-term allegations that the U.S. has, in fact, subjected detainees at Guantánamo to harsh interrogation tactics. In fact, the U.S. Senate expressly concluded, in a report issued about a month after the ECHR ruling, that the U.S. had a practice of abusing detainees. U.S. Vice President Dick Cheney subsequently verbally acknowledged his own role in authorizing many of those practices, including waterboarding. Finally, Eric Holder, President Obama’s chosen attorney general, later testified before the U.S. Congress in his confirmation hearing, and he unequivocally stated that waterboarding is, indeed, torture.
The ECHR appears to have been influenced, at least in part, by the ruling of the U.S. Supreme Court in Boumediene. Moreover, it reached its decision at the same time that the habeas petitions were pending before Judge Leon, and, in fact, two days before he ordered the release of five of the men. It is unclear whether this improved procedural posture within the U.S. factored into the ECHR’s ruling.
Conclusions
The Boumediene decision is already having a great impact on detainees at Guantánamo Bay, aside from those at the center of that case. In spite of Judge Leon’s statement that the Algerian Group case was unusual, it is becoming clear that it is not so unusual at all. According to a New York Times article, as of early 2009, 23 men have been ordered released by U.S. federal courts, in habeas proceedings, since the Supreme Court’s Boumediene decision, with one additional man being released after a panel at Guantánamo Bay found his classification as an “enemy combatant” to be improper. The Government has only persuaded the courts to continue detention in three cases heard in such proceedings.
On January 14, 2009, Judge Leon himself ordered the release of another Guantánamo detainee, Mohammed el Gharani, a Chad national, who was a resident of Syria and was only 14 when he was detained in 2001. The evidence to hold him was essentially based on the unreliable allegations of two other detainees, whose credibility even the U.S. Government itself had questioned. Judge Leon rather caustically described the U.S. Government’s case, referring to one of its allegations: “Putting aside the obvious unanswered questions as to how a Saudi minor from a very poor family could have even become a member of a London-based cell, the government simply advances no corroborating evidence for these statements.” (El Gharani Memorandum Order, p. 10). The el Gharani case provides an example of why these cases were so delayed – Judge Leon notes that the initial habeas petition in his case was filed in 2005, after the U.S. Supreme Court decision in Rasul v. Bush, but that no action was taken until after the 2008 Boumediene decision. (El Gharani Memorandum Order, p. 3).
Vincent Warren, the Executive Director of the Center for Constitutional Rights, noted, as these rulings unfolded, “The house of cards is finally falling down.” And yet, as they left office, high-ranking members of the Bush Administration continued to insist that the detentions are justified, with Vice President Dick Cheney claiming that those who remain at the detention center now are “the hardcore.” As courts finally have the opportunity to hear the evidence on which these controversial detentions have been based, however, it appears that Mr. Warren’s perspective prevails, and that the entire system of detention at Guantánamo is highly questionable. This, in turn, should raise serious concerns for those governments whose citizens and residents are detained there.
In his Executive Order, U.S. President Barack Obama ordered the Secretary of State to pursue diplomatic avenues with the countries whose nationals are detained at Guantánamo Bay. Thus, the time is appropriate for the Government of Bosnia and Herzegovina to pursue diplomatic channels with the new administration to vigorously seek the release of the remaining members of the Algerian Group. In so doing, it should make clear that it is willing and able to accept them in Bosnia and Herzegovina, and that the men should not be sent to Algeria if released.
1Published sources contain varying versions of the names of the Algerian Group, including published legal sources. For the sake of consistency, this article uses the versions of the names that are included in the U.S. federal court decision, under the assumption that the court action, filed on the men’s behalf by their lawyers, would be most likely to contain the correct version of their names.
2Boumediene v. Bush, 553 U. S. ____ , 128 S. Ct. 2229 (2008). For citation purposes in this article, reference is made to the Supreme Court slip opinion, because it is available online, allowing for easy reference when linked.
