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Judge Orders U.S. Not to Transfer Tunisian Detainee

One U.S. official familiar with the case said the government views Kessler's decision as an "interim solution" and not a substantive finding. Cynthia Smith, a Pentagon spokeswoman, said that "detainees are not repatriated to countries where it is more likely than not that they will be tortured" and noted that the Defense Department investigates allegations of mistreatment.

Rahman's attorneys have argued that their client suffers from serious health problems and that Tunisia convicted him of terrorist crimes in absentia, based on laws created while Rahman was held at Guantanamo Bay. A 20-year prison sentence awaits Rahman, and his attorneys have argued that Tunisia's record of torture and maltreatment could amount to a death sentence.

"In view of the grave harm Rahman has alleged he will face if transferred, it would be a profound miscarriage of justice" if the court denied Rahman's petition to remain at Guantanamo, Kessler wrote in an eight-page order. She added that the upcoming Supreme Court case could lead to the courts opening up to detainees such as Rahman. "At that point, the damage would have been done."

The U.S. military has transferred or released approximately 445 detainees from Guantanamo to other countries. Government officials say they regularly receive assurances that the detainees will not be ill-treated. About 330 detainees remain at Guantanamo.

Denbeaux, who has worked with Seton Hall University's Law School in studying the Guantanamo detainees' cases, said that 55 percent have never been accused of committing a hostile act against the United States or its allies and that 60 percent were neither fighters for the Taliban nor for al-Qaeda. Denbeaux contends that Rahman is in both groups.

Staff researcher Julie Tate contributed to this report.


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