By Josh White
Washington Post Staff Writer
Wednesday, October 10, 2007

A federal district judge has ordered the government not to transfer a Tunisian detainee held at Guantanamo Bay, Cuba, to his home country, over fears that he would be tortured or killed. The move marks the first time a court has prevented U.S. officials from making such a transfer and is the first ruling in favor of an individual detainee's rights at the detention facility since Congress restricted court oversight of the detainees.

Judge Gladys Kessler of the U.S. District Court for the District of Columbia ruled last week that Mohammed Abdul Rahman cannot be sent to Tunisia because he could suffer "irreparable harm" before the Supreme Court rules in a landmark case that could give him access to U.S. courts. Her decision was unsealed yesterday.

Rahman's case underscores the challenges facing the Bush administration as it seeks to transfer alleged enemy combatants out of Guantanamo Bay and to the custody of their home nations as part of an effort to close the facility. Acknowledging the tainted reputation that Guantanamo has gained internationally, U.S. officials have long been seeking to send detainees elsewhere, relying on diplomatic agreements that the recipient countries will not mistreat them.

While President Bush and other officials have publicly stated their desire to close the facility, the administration has engaged in heated internal debates and has not come to a consensus on how to do so, as well as on the fate of the detainees who would need to remain in custody. Guantanamo's population has been slowly dwindling as U.S. officials have negotiated the transfer of hundreds of detainees to their home nations.

But some detainees would rather remain at Guantanamo than face possible torture or death at home and have begun to challenge their departures in U.S. courts. Rahman is the first detainee to succeed in that effort. Two other detainees recently sent to Tunisia have reported that they were abused and tortured there, according to their attorneys and human rights groups.

The Rahman decision could lead to similar requests from detainees facing transfer to countries with spotty human rights records, possibly putting the U.S. government in the difficult position of having to hold people at Guantanamo indefinitely even after the military has cleared them for transfer or release. It also shows the court's willingness to accept jurisdiction over such claims, at least until the Supreme Court rules in Boumediene v. Bush, which could grant detainees habeas corpus rights, or the right to challenge their detention in U.S. courts.

"This is the first time the judicial branch has exercised its inherent power to control the excesses of the executive as to treatment of prisoners at Guantanamo Bay," said Joshua Denbeaux, Rahman's attorney. "The executive has now been told it cannot bury its Guantanamo mistakes in Third World prisons."

Another Guantanamo detainee, Abdul Ra'ouf Omar Mohammed Abu al-Qassim, publicly fought transfer to his home country of Libya in June, also fearing torture or death. Though he exhausted all of his options in court, members of Congress petitioned the State Department not to send Qassim to Libya, and U.S. officials indefinitely postponed his transfer.

Jennifer Daskal, senior counterterrorism counsel at Human Rights Watch, said the ruling highlights the need for oversight of the government's transfer policies. "It's an important and significant development and positive step forward," Daskal said. "Having a court step in and order the administration not to transfer a detainee to what is likely torture sets a precedent for other courts and other judges to do the same thing."

The decision also indicates how much hangs on the Boumediene case. Kessler on the same day last week granted similar relief to a detainee held at Bagram air base in Afghanistan, saying the government cannot transfer him until the Supreme Court rules.

"It shows why the stakes are so high in the Supreme Court case," said David Remes, who represents detainees at Guantanamo. "If the Supreme Court rules that Guantanamo detainees have the right to habeas corpus, judges will be able to enter this kind of restraining order against the government to protect them from being sent to other countries where they may be tortured or killed."

Erik Ablin, a Justice Department spokesman, said the government argued that Kessler's court does not have jurisdiction in the case. "The court's order recognizes that the jurisdictional issue -- which was resolved by the U.S. Court of Appeals for the D.C. Circuit in favor of the government in Boumediene v. Bush-- is currently before the Supreme Court," Ablin said. "The government is now reviewing the district court order and considering its options."

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.