By Eric Umansky
Sunday, March 5, 2006
Walid al-Qadasi should have been thrilled he was finally leaving Guantanamo Bay, Cuba. Al-Qadasi, a Yemeni man in his mid-twenties, had been held at the prison there about two years. He was first arrested in late 2001 by Iranian authorities who, al-Qadasi later recalled, "sold" him to U.S.-allied Afghan forces for a bounty. With little evidence against him -- and no tribunal having established his guilt or innocence -- al-Qadasi was sent home from Guantanamo in April 2004.
In an affidavit taken by the Center for Constitutional Rights, which leads a team
of attorneys representing Guantanamo detainees, al-Qadasi says that he remembers almost nothing of the unexpected move. He recalls being given an injection at Guantanamo and then simply waking up in another cell in what turned out to be Yemen. (Other detainees have also spoken of being drugged during transfers.) Once in Yemen, al-Qadasi said, he was "routinely beaten" by guards. Yemeni officials insist al-Qadasi is being held at the request of the United States, an assertion the Pentagon denies. Whatever the case, al-Qadasi has now been sitting in that jail for two years without a lawyer or prospects for a trial.
With the calls coming again to close Guantanamo -- the latest of them in a recent report from the United Nations asserting treatment "amounting to torture" -- it's important to consider al-Qadasi's case. Shuttering the U.S. prison wouldn't be a bad idea; at the very least it might help the United States' image. The question is where should the prisoners go and, more important, what sort of safeguards should there be to ensure they won't face treatment even worse than what they got at Guantanamo.
The issue is not just theoretical or relevant to only a few cases. No prisoners have been sent to Guantanamo Bay in 18 months. As the New York Times reported recently, the United States is holding hundreds of al-Qaeda and Taliban suspects at what was supposed to be a temporary jail in Afghanistan. As for the detainees at Guantanamo, the United States is moving them out. Eighty have been transferred to their home countries for continued detention. Another 180 detainees have been cleared in one way or another and, in the Pentagon's careful parlance, "transferred for release."
The military appears to put al-Qadasi in this second category. In that grouping, a Pentagon spokesman told me, "We don't insist the prisoner continue to be held." Rather, he explained, the country the detainee is being returned to just "promises to ensure that the prisoner won't be a threat to the United States."
Scattered reports -- from local lawyers and human rights groups -- show that at least two dozen former Guantanamo detainees, including those returned to Pakistan, Saudi Arabia and Yemen, have been moved, only to languish in their new jails again without charges. But it's hard to get an overall picture because the Pentagon publishes transfer figures only in the aggregate and there is no other clearinghouse for information. What is clear is that the numbers are about to increase.
The United States is negotiating with Afghanistan, Saudi Arabia and Yemen to return nearly all the detainees who are from those countries. In Afghanistan and Yemen, the men will reportedly be housed in U.S.-funded prisons. Talks on the possible wholesale transfers have been going on since last summer. Among the apparent sticking points: Afghanistan, like most countries, has a constitution that doesn't allow for prisoners to be held indefinitely without trial.
Meanwhile, the administration is pushing to remove the one check that exists on the transfers. Since the Supreme Court ruled nearly two years ago that Guantanamo detainees have access to federal courts, prisoners there have been able to challenge plans to move them to countries where they might face abuse. After all, such transfers would violate an anti-torture treaty the United States has signed. But in the administration's view, that avenue for appeal shouldn't exist: The government argues that the recently passed Graham-Levin amendment, which limits detainees' access to the courts, applies to the cases already filed on behalf of nearly all detainees. If that view prevails, it will close out the possibility of using the cases to challenge pending transfers or even have detainees' lawyers be notified about them.
Of course there's nothing necessarily wrong with sending prisoners back to their home countries. And it seems ironic that lawyers might push for their clients to stay at Guantanamo Bay. But the question isn't whether detainees should be sent home; it's what the intention is for sending them and protections, if any, there will be.
Walid al-Qadasi is still sitting in jail in Yemen. As for his treatment, it's hard to tell. Yemeni officials haven't allowed visitors recently. So, yes, let's close Guantanamo Bay. Let's also keep one of the few checks remaining on the transfers and hope there are no more cases like that of al-Qadasi.
Eric Umansky writes the Today's Papers column for Slate.