By Peter Finn
Saturday, July 10, 2010; A03
The Obama administration would quickly send home six Algerians held at the military detention center at Guantanamo Bay, Cuba, but for one problem: The men don't want to go. Given the choice between repatriation and incarceration, the men choose Gitmo, according to their lawyers.
The administration secured a significant legal victory Thursday when a federal appeals court overturned a lower court's ruling that had barred the government from repatriating one of them. The detainee had asserted that if he is returned, the Algerian government will torture him or he will be targeted by terrorist groups who will kill him if he refuses to join.
U.S. District Judge Gladys Kessler had ruled that the claims of Farhi Saeed bin Mohammed, 49, who has been held at Guantanamo Bay for more than eight years, "are of great concern." She said the court must ensure that there is "real substance" behind any diplomatic assurances obtained by the administration that detainees repatriated to Algeria will be treated humanely.
A panel of the U.S. Court of Appeals for the District of Columbia overturned Kessler late Thursday, granting the government's emergency appeal. Much of the litigation remains under seal, but the government argues that legal precedent makes clear the executive branch's prerogative to decide where to transfer a detainee.
Mohammed's attorneys declined to comment. Human rights activists said they would appeal, possibly to the Supreme Court.
Political strife in Algeria has claimed as many as 200,000 lives since 2002. The government has employed violent tactics, including torture, to suppress an Islamist insurgency, according to human rights groups.
The State Department's report on human rights practices in Algeria in 2009 noted that "local human rights lawyers maintained that torture continued to occur in detention facilities, most often against those arrested on 'security grounds.' "
Administration officials point out that despite this history, the United States, under the Bush and Obama administrations, has already sent 10 Algerian detainees home from Guantanamo Bay, and that none has been persecuted.
"We take some care in evaluating countries for repatriation. In the case of Algeria, there is an established track record and we have given that a lot of weight," said an administration official who spoke on condition of anonymity because of the active litigation. "The Algerians have handled this pretty well: You don't have recidivism and you don't have torture."
The official noted that the administration has refused to repatriate detainees to countries such as China, Libya, Syria, Tunisia and Uzbekistan, where U.S. officials believe there is a risk of torture or where returned detainees have been mistreated.
The administration has been preparing to repatriate one of the six Algerians. But lawyers for Aziz Abdul Naji, 35, who has been held at Guantanamo for more than eight years, said he is "adamantly opposed to going back."
"It would be outrageous and inhumane to take him against his will," said Doris Tennant, one of his lawyers.
The government, acting on the belief that Naji recently changed his mind, had planned to fly him home. If officials go ahead, it would be the first involuntary transfer out of Guantanamo Bay by the Obama administration.
The Bush administration involuntarily transferred detainees to Libya and Tunisia, but they were mistreated after they returned home, according to human rights groups. Transfers to both countries were subsequently stopped.
Lawyers for the six cleared Algerians said their clients live in fear of being forcibly repatriated.
"These men would rather stay in Guantanamo for the rest of their lives than go to Algeria. That speaks volumes," said David Remes, an attorney for detainee Ahmed Belbacha, who was sentenced in absentia to 20 years in prison by an Algerian court last year for alleged association with an illegal armed group. "They are terrified to go, but this administration is willing to march them off a cliff."
Human Rights Watch said that the detainees sent home earlier were not perceived as particularly threatening by Algeria because of their age or health, and that the risk of torture is greater for remaining detainees.
"The U.S. has a legal obligation not to send people to countries where they could be tortured," said Stacy Sullivan of Human Rights Watch.
But an administration official said the arguments of the lawyers and human rights activists are "very abstract and unconvincing." The official did say they will consider whether Belbacha, 40, should be resettled in a third country because of the conviction in absentia.
The official also acknowledged that there is another, practical reason to send the Algerians home. Of the approximately 22 detainees remaining at Guantanamo Bay that the administration wants to resettle in third countries, it has pledges for about half of them, according to the official.
Remes countered that there is no rush.
"What's the government's hurry?" he said. "Guantanamo isn't closing anytime soon, and these men are willing to wait there even if they are last in line to get out."