In an attempt to bring to an end a nearly four-year deadlock in the case of Ahmed Belbacha
, an Algerian prisoner in Guantánamo, lawyers at the London-based legal action charity Reprieve
have "started high court proceedings to force the British government to disclose information that they say could free him from Guantánamo Bay and save his life," as the Guardian
explained in an article on Wednesday.
A former professional footballer, Ahmed Belbacha fled Algeria for the UK in 1999 after receiving death threats from the Groupe Islamique Armé (GIA), which, as Reprieve explained in its submission to the High Court (PDF
), "targeted individuals who had served in Algeria’s military (and might again be called up), as well as employees of state-owned enterprises. Mr. Belbacha, who had completed a mandatory term of national service and worked for Sonatrach, the state-owned oil company, fitted both categories."
Reprieve added that Belbacha "sought for a period to evade the GIA from within Algeria," but that, "when the threats continued to escalate ... he left the country for good," subsequently settling in the UK, and living for nearly two years in Boscombe in Bournemouth, where, as has been previously reported
, and as the Guardian
explained, he "worked and studied English," and, during one Labour Party conference, "was responsible for cleaning the hotel room of the then deputy prime minister, John Prescott," who left him a tip and a thank-you note.
In the summer of 2001, Belbacha traveled from the UK to Pakistan and then on to Afghanistan," which he would not have done had he had any militant aims, as his asylum claim was still pending in the UK. After the US-led invasion of Afghanistan in October 2001, he returned to Pakistan, where he was seized. He was then held in a Pakistani prison (where he was abused), before being transferred to US custody, staying in the US prison at Kandahar from December 2001 until approximately February 9, 2002, when he was flown to Guantánamo, where he has been held ever since.
In the court submission, Belbacha's lawyer, Cori Crider, stated that her client "seeks disclosure from the Secretaries of State tending to show that certain statements he is said to have made during detention were obtained by torture and mistreatment." She added, "This information is necessary for two purposes: first, to make representations to US executive officials (and in the US courts) against his transfer to Algeria, and second, to have his coerced statements suppressed in the litigation of his substantive habeas claim."
The torture of Ahmed Belbacha
Crider proceeded to explain how Belbacha was subjected to torture and abuse in US custody in Kandahar and Guantánamo, and how British agents, who interrogated him in both locations, helped to provide information that formed the basis of the false confessions that resulted from the more brutal sessions at the hands of US interrogators:
Mr. Belbacha has on several occasions told me that, during his detention at Kandahar and Guantánamo, he suffered serious mistreatment and was tortured. He alleges that the mistreatment included, among other things, beatings, sleep deprivation, sexual humiliation and abuse, sensory deprivation, exposure to temperature extremes, dietary manipulation and the use of stress positions. [...]
Mr. Belbacha alleges that he was questioned by UK interrogators at Kandahar and Guantánamo during the period of his mistreatment. The interrogators knew of Mr. Belbacha’s employment history in the UK and questioned him about his connection with certain mosques in the UK. [...]
During his interrogations, Mr. Belbacha informs me that he made false statements and confessions as a result of his torture and mistreatment during custody and, in particular, due to his fear that his abuse would otherwise continue. He is unable to specify the precise details of the statements and confessions, as he has been questioned hundreds of times over the past nine years and because the memories are in many instances too painful, but much of his questioning by British officials related to his alleged association with the Finsbury Park mosque in the United Kingdom and how individuals at the mosque had allegedly assisted him in travelling to Afghanistan. Mr. Belbacha’s false confessions obtained under torture are the sole source of a number of allegations made against him.
None of this is surprising, of course, as the array of techniques to which Belbacha was subjected were common, in various permutations, in both Kandahar and Guantánamo, and because it has been established, in court proceedings in the case of Binyam Mohamed
, the British resident subjected to "extraordinary rendition" and torture in Pakistan, Morocco and Afghanistan, that the British security services provided information to their US counterparts while he was being held and tortured in Morocco. However, the chain of events is of particular interest in Belbacha's case, as it suggests that the US interrogators stepped in after their British counterparts had obtained information from him directly, and indicates a very clear example of complicity in torture.
Reprieve's aim, however, is not primarily to expose this aspect of the British securtity services' activities, but, as stated in the lawsuit, to secure information in the possession of the British government to help prevent Belbacha's forcible repatriation, and also to provide important evidence as part of his ongoing habeas corpus petition in the District Court in Washington D.C., where, since the Supreme Court gave the prisoners constitutionally guaranteed habeas rights
in June 2008, 57 cases have been decided
, two-thirds of which have been won by the prisoners.
Resisting involuntary repatriation and seeking a new home for Ahmed Belbacha
This information is of great significance because of the particular circumstances in which Belbacha finds himself. Although Reprieve was notified on February 22, 2007 that Belbacha had been cleared for release from Guantánamo after an Administrative Review Board hearing the year before, he was desperate not to return to Algeria, because, as Cori Crider explained, "he fears that he would be mistreated by the Algerian state, having spent nearly a decade in US custody stamped as a would-be terrorist (and having vocally objected to returning to Algeria for many of those years)" and he "also fears retaliation from the contemporary descendant of the GIA -- al-Qaeda in the Islamic Maghreb (AQIM) -- as he has been an equally vocal critic of the GIA’s attacks on civilians."
On the former point, Belbacha's fears appeared to be confirmed last November, when he was "convicted in absentia in Algeria of unspecified charges and sentenced to 20 years' imprisonment." Reprieve has been unable to establish the grounds for his conviction, and, as Cori Crider noted in her submission, "The sentence is particularly troubling because no other Algerian in Guantánamo was thus singled out. It appears likely that the sentence reflects a decision by the Algerians to retaliate against Mr. Belbacha, the earliest and most vociferous opponent of repatriation to Algeria from Guantánamo. I am not aware of any diplomatic or political assurances (credible or otherwise) that have been given by the government of Algeria in relation to Mr. Belbacha’s treatment on his return."
As a result of Belbacha's credible fears, Reprieve has spent nearly four years trying to secure resettlement for him in a third country. The British government has persistently refused to help
, an application for asylum in the US was turned down in 2007, and although the town of Amherst, Massachusetts passed a resolution
last year offering him a new home, this cannot happen because of legislation passed by Congress
preventing the transfer of any Guantánamo prisoner to the US mainland except to face a trial (and even that last proviso is currently in doubt
The closest Belbacha came to resettlement in a third country appears to have been in January this year, when representatives from Reprieve, Cageprisoners
and the Center for Constitutional Rights
traveled around Europe attempting to secure new homes for cleared prisoners who faced the risk -- or the probability -- of torture in their home countries. Crider noted that "The most advanced of those efforts, which targeted the government of Luxembourg, was apparently blocked by the US State Department," and explained, in a footnote:
I know this because our efforts with the government of Luxembourg culminated in a meeting, on January 14, 2010, which was attended by myself for Reprieve, Moazzam Begg
[for Cageprisoners], the Foreign Minister of Luxembourg, and a member of staff at a partner group, the Center for Constitutional Rights (CCR). The discussion centred on two individuals -- Mr. Belbacha and one of CCR’s clients -- and during the meeting, Reprieve, with Mr. Begg’s support, proposed Mr. Belbacha as an appropriate candidate for resettlement in Luxembourg. We later learned from a contact in the Luxembourg Foreign Ministry that, as a result of this meeting, Foreign Minister Jean Asselborn had inquired of our client by name of the US authorities. The contact related that the US State Department officials had brushed off this approach, stating that Mr Belbacha “could go back to Algeria.”
Ths experience led Crider to conclude, as she explained, that "further efforts in this vein will be futile without additional exculpatory information or information that indicates that [Belbacha] will be at risk on return to Algeria. Without this information, the US government is unlikely to be willing to press [his] case for resettlement out of Algeria."
Problems in the US courts
In seeking to prevent Belbacha's involuntary return to Algeria, Reprieve has, after initial success, run up against renewed opposition from officials of the Obama administration and various US courts, which affects not only Belbacha but dozens of other prisoners as well. In July 2007, Reprieve asked the District Court in Washington D.C. to prevent Belbacha's involuntary repatriation, and secured an injunction preventing his removal on June 13, 2008. This, however, only stood until the D.C. Circuit Court became involved, ruling in September 2009
, in a case known as Kiyemba II
, involving the Uighurs in Guantánamo (Muslims from China who won their habeas petition
in October 2008, but feared torture in China) that questions relating to the transfer of prisoners -- even when the risk of torture was involved -- were solely for the executive branch of government to decide.
The court, out of nowhere, drew on Munaf v. Geren
, a case from 2008 in which “two American citizens held in the custody of the United States military in Iraq petitioned for writs of habeas corpus, seeking to enjoin the Government from transferring them to Iraqi custody for criminal prosecution in the Iraqi courts.” In Munaf
, the court ruled that “it could not enjoin the Government from transferring the petitioners to Iraqi custody,” because “that concern is to be addressed by the political branches, not the judiciary.”
As a result of the Kiyemba II
ruling, which the Supreme Court refused to reconsider
in March this year, Belbacha’s injunction was vacated by a District Court judge (in February), and attempts to have it reconsidered were refused. The last straw for Belbacha came in July, when, after protracted court dealings (mostly conducted in secret), the Supreme Court refused to prevent the administration from repatriating any of the six Algerians in Guantánamo at the time, leading to the immediate repatriation
of one of these men, Abdul Aziz Naji, who promptly disappeared for a few days, before resurfacing with the threat of a dubious terrorism trial hanging over him.
As Crider noted in her submission, "because there is no injunction in place, the US government may forcibly repatriate Mr. Belbacha at any time." She also noted that public criticism of the decision to transfer Naji against his will appeared to have paused further transfers, but stressed that the current situation -- in which all the government needs to do is assert that it is "government policy not to transfer prisoners to torture" for all judicial inquries to come to an end -- is deeply unsatisfactory, and, as a result, Ahmed Belbacha is now seeking to win his habeas corpus petition in the District Court in Washington D.C., and needs the documents in the possession of the British government as an essential part of his defense.
Explaining the importance of his habeas petiton, Crider noted, that although "under current Court of Appeals precedent
, the judge has no power to order the production of the prisoner in the courtroom; no power to order that the prisoner be released into the United States (or, it would appear, anywhere else); and no power to order the US not to send a petitioner, prevailing or otherwise, anywhere," and that "The scope of the habeas remedy left to the US judiciary, in other words, is remarkably slim ... there remains a category of prisoners that the US has never forced back to a country unwillingly: habeas winners."
The importance of the British information about Ahmed Belbacha
After running through the poor history of disclosure in the US courts, where "government lawyers litigating the habeas cases have repeatedly claimed that they do not have access to the full set of relevant documents that might be implicated in a habeas action, and that to be required to search all of every relevant agency’s files (the DOD, the CIA, and so forth) for relevant material would be 'unduly burdensome,'" and where, in the case of Binyam Mohamed, who was demonstrably sent to Morocco to be tortured, "Morocco never once appeared as a detention site on any document ... in three separate orders from the district judge in [his] habeas action to the government to disclose all exculpatory information", Crider's submission ended with an appeal to the High Court to order disclosure of documents that might help prevent her client's involuntary repatriation, and I believe this entire passage is worth quoting in its entirety:
A key category of information that is, in my experience, never disclosed is exculpatory information identifiably sourced from a foreign government. So, for example, even had the UK authorities generated reports of their interviews with the Claimants in Afghanistan and in Guantánamo and shared those reports with the US -- something UK agents might well do -- the US government has not disclosed and would not disclose such foreign-sourced material out of respect for the "control principle" [of not disclosing foreign intelligence sources] that was litigated at length
in the English Binyam Mohamed litigation.
It is also, of course, likely that the UK produced internal reports about the situation in Afghanistan or Guantánamo that were never transferred to the US. Those reports, self-evidently, would be unavailable in any habeas disclosure process.
I am aware only of two instances in which exculpatory material originating with a foreign intelligence agency has been disclosed to a petitioner’s lawyer in a Guantánamo case: the case of Binyam Mohamed, and the case of Shaker Aamer
. In both cases, the only reason such material was disclosed was as a result of Norwich Pharmacal
litigation in England. I am cleared counsel of record in both cases, and have reviewed those disclosures at the Secure Facility in the US [where Guantánamo lawyers must travel to view all classified information]. In both instances, the UK disclosures were, by some margin, the most useful, illuminating, and exculpatory material that I saw in the habeas process.
For these reasons, the information sought is a vital part of having my client’s coerced statements suppressed in their habeas proceedings. I also believe it an essential component of persuading Obama administration officials not to transfer my client to Algeria against his will.
While I cannot know the scope of the information used by the Obama administration to determine whether and under what circumstances to transfer my clients, I do know that my own capacity to make effective representations to them has thus far been very limited. The reasons for this are simple: I have as yet had no information I could use to prove to the administration that my clients’ allegations of coercion, particularly during their early years in US military detention, were true. This, combined with the challenges of producing detailed statements on abuse (or, indeed, on the circumstances of capture) from prisoners who have been in Guantánamo for nearly nine years, has limited me to making fairly general statements: statements to the effect that I believe the clients were abused in custody, that the clients were never implicated in any terrorist act and never joined al-Qaida or the Taliban, and that the clients would pose no threat to anyone upon their release to a safe third country.
It is my view that the representations I could make if I had meaningful exculpatory information about Mr. Belbacha, and about how he was treated in US custody, would be qualitatively different. This, in turn, I believe would make the Obama administration more open to the prospect of resettling him, rather than simply forcing him back to abuse, an unfair trial and/or lengthy imprisonment in Algeria.
The Obama administration has stated, on more than one occasion, that it considers a prisoner’s individualized claim of fear of torture when it decides whether to repatriate a prisoner. In theory, of course, the question of the abuse a prisoner faces in Algeria and his fitness to be released elsewhere are distinct; in practice, however, I believe the lines blur. Proving to the Obama administration that Mr. Belbacha was tortured; that he gave false statements under torture; that, therefore, that allegations lodged against him are unreliable, particularly the most severe ones, is, I believe, an essential part of persuading the government that it would be unjust and inappropriate to return Mr. Belbacha to Algeria.
I wish Reprieve every success in this approach. The Norwich Pharmacal
litigation mentioned above, which, in simple lay terms, involves appraisals of how parties (in these cases, the UK government) can become involved in "wrongdoing," whether intentionally or not, for which a remedy may be sought, was invaluable in the case of Binyam Mohamed, and eventually led to his release. It has not yet had the same end result in Shaker Aamer's case, although it led, last December, to the release of important documents in the possession of the British government, and it is clear, in the grounds for a judicial review submitted by Cori Crider (PDF
), that it should also apply in Ahmed Belbacha's case. As she explained:
Mr. Belbacha alleges that the Defendants have become involved in the wrongdoing of the US authorities in the following ways. UK officials:
(1) interviewed Mr. Belbacha in circumstances where it was standard practice for detainees to be mistreated prior to interviews to secure their cooperation, thereby facilitating further mistreatment;
(2) interviewed Mr. Belbacha in circumstances where this is likely to have prolonged his detention, in particular at Kandahar;
(3) failed to protest at the mistreatment, torture and/or unlawful detention of Mr. Belbacha, despite no doubt being aware of the circumstances of his detention;
(4) failed to take any or any sufficient steps to secure better treatment for Mr. Belbacha; and
(5) failed to take any or any sufficient steps to secure the release from detention of Mr. Belbacha.
If justice has not entirely vanished, it will lead, as intended, to Ahmed Belbacha winning his habeas petition, and the Obama administration accepting that it will no longer try to forcibly repatriate him, and will, instead, seek a third country prepared to take him.
And if there is any justice left over, that third country will be the UK, where he lived in a peaceful and law-abiding manner for nearly two years, and where there are many people wiling and able to help with his resettlement.