May 26, 2006 – Under increasing international and domestic pressure, the US government announced in late April it would release nearly 150 men from its detention center at GuantÃ¡namo Bay. The to-be-released detainees had never been charged with a crime by the US government.
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After gaining national headlines for the move, however, the military has yet to release the majority of the men it promised to let go.
On May 19, US authorities discharged fifteen Saudis and turned them over to their government. But the rest of the detainees slated for release remain in limbo. The Bush administration says it cannot yet free the men because of concerns about human rights situations in their home countries.
Meanwhile, the administration refuses to grant asylum stateside to any of the detainees slated for release.
Advocates for the detainees, including their lawyers and human rights groups that have been railing against the US detention policy since the early days of the "war on terror," agree concerns over the post-release safety of the men are legitimate and important.
But at the same time, they say, the US government cannot continue to hold the detainees indefinitely in conditions already criticized under the same auspices of international law that mandate they not be turned over to abusive home governments.
"I think it is extremely important for the US to be forward-looking as far as what will happen to [the detainees] if theyâ€™re sent back," said Katherine Newell Bierman, counter-terrorism counsel for the US branch of Human Rights Watch.
Reports of post-GuantÃ¡namo detention and torture, though anecdotal, have alerted those working to ensure the rights of GuantÃ¡namo detainees that their efforts must go beyond securing their release or fair trial.
Newell Bierman pointed to mounting evidence that many of the GuantÃ¡namo detainees were never known to be involved with the Taliban or Al-Qaeda. A significant number appear to have been detained after Afghan warlords and other suspicious parties turned them over to US forces in exchange for monetary rewards.
"It would only compound the injustice if they are sent back to countries where theyâ€™ll face torture and human rights abuses," Newell Bierman said. "Already we know there are detainees who were sent home and suffered abuses and harassment."
Reports of post-GuantÃ¡namo detention and torture, though anecdotal, have alerted those working to ensure the rights of GuantÃ¡namo detainees that their efforts must go beyond securing their release or fair trial. For example, Walid Al-Qadasi has been imprisoned by his home country of Yemen ever since his release from GuantÃ¡namo two years ago. No charges have been filed against him there, either.
Last fall, according to the Institute for War and Peace Reportingâ€™s Caucasus Reporting Service, Russian authorities badly beat another former GuantÃ¡namo detainee, Rasul Kudayev, detained and eventually "disappeared" him. Kudayev was snatched in October 2005 for allegedly attacking a police checkpoint as part of an Islamic separatist uprising in his hometown of Nalchik in the north Caucasus.
The government often relies on â€œdiplomatic assurancesâ€ from detaineesâ€™ home countries that they will not be tortured.
In January, CRS reported, Kudayevâ€™s family and advocates said he was not in the prison where they were told he was being held. He was "lost" in the detention system, they said.
The United Nations Convention Against Torture prevents the United States from sending detainees to another country where they could be tortured. But the government often relies on "diplomatic assurances" from detaineesâ€™ home countries that they will not be tortured. However many human rights lawyers and NGOs are skeptical about the level of protection offered by such promises.
"The US says it is sufficient if you get diplomatic assurance that the guy wonâ€™t be tortured, even if thereâ€™s a history [of torture] either in regards to the individual or the countryâ€™s practice as a whole," said Newell Bierman.
In one high-profile example of the failure of diplomatic assurance, US authorities turned Canadian national and Syrian native Maher Arar over to Syrian authorities in late 2002 after the government there reportedly gave the Bush administration assurances he would not be tortured. In an interview with The NewStandard last year, Arar described how he was released without charge from Syrian custody ten months after his abduction. He said he was severely tortured with cables, electrical cords and confinement in tiny spaces he compared to a grave.
Human Rights Watch released a report in 2005 that notes diplomatic assurances are based on "trust that the receiving state will uphold its word, when there is no basis for such trust."
"It defies common sense to presume that a government that routinely flouts its obligations under international law can be trusted to respect those obligations in an isolated case," wrote the authors.
Despite uncertainty over how they will be treated outside GuantÃ¡namo, some prisoners would prefer to risk abuses in their home countries rather than staying indefinitely in US custody.
The US itself is accused of reneging on such a commitment in the case of Omar Khadr, a Canadian youth captured by US forces in Afghanistan. Canadian authorities said they received assurances he would be treated humanely. As previously reported by TNS, Khadr, who was 15 years old when he was first detained, said his captors shackled him in painful positions and threatened him with rape, in addition to other mistreatment.
Despite uncertainty over how they will be treated outside GuantÃ¡namo, some prisoners would prefer to risk abuses in their home countries rather than staying indefinitely in US custody, where severe mistreatment and torture has been widely reported. Conditions at the detention facility have grown so desperate for some of the captives that prisoners have staged hunger strikes, and some have attempted to kill themselves.
Saudi national Abdul Aziz Bin Abdullah Al-Badah has been held in GuantÃ¡namo for more than four years, even though a presiding officer at the tribunal hearing his case acknowledged that it appeared Al-Badah had not taken up arms against the US. Al-Badah was turned over to US forces in the fall of 2001 by Pakistani authorities who detained him after he left Afghanistan, where he says he was doing humanitarian work.
Al-Badahâ€™s lawyer, Jeremy Hirsh, told TNS that all Al-Badah wants is to return home to his wife and seven-year-old daughter, even if that means risking mistreatment in Saudi Arabia.
"He unconditionally wants to go back to his country," said Hirsh. "He would rather be in Saudi Arabia and face imprisonment there than remain in the dark in GuantÃ¡namo."
Hirsh continued, "Compared to the bleak prospect of indefinite detention in GuantÃ¡namo Bay, a number of detainees would certainly prefer to be in the custody of the governments of their home countries."
Hirsh said that while human rights are generally a serious concern in Saudi Arabia, he is not aware of any reports of released GuantÃ¡namo detainees suffering human rights abuses there. News agencies have reported that at least five Saudi GuantÃ¡namo detainees who were previously sent back home have been released from Saudi detention.
The most recent detainees released to Saudi Arabia will reportedly be interrogated and then tried if they are thought to have terrorist connections.
Meanwhile, detaineesâ€™ attorneys are finding it extremely difficult to monitor the treatment and prospects of their clients who may be released, since the US government has generally resisted revealing the status of detaineesâ€™ cases, including when they may be transferred or released. In March 2005, a group of Yemenis filed a motion asking for 30 daysâ€™ notice if they are to be transferred to their home country where they fear they will be tortured. As a result, a US judge mandated the government give them advance notification of any pending transfer.
"If the detainee is going somewhere they may be tortured, [attorneys] want to know so they can stop it," said Newell Bierman. "And can their family know so they can meet them? Are they given warm clothes? People are leaving GuantÃ¡namo pretty messed up, you donâ€™t just take someone like that and drop them off in the middle of nowhere."
In most cases, the US government has two main options when dealing with detainees from countries known to commit human rights abuses. It can grant them asylum in the United States, or it can broker a deal with another country willing to harbor them. The Bush administration has so far refused to offer asylum to people it had once accused of terrorism. In at least some cases, the USâ€™s accusation itself is what could lead to rights violations abuses abroad.
But if release into the US is the only way detainees can be let out of GuantÃ¡namo safely and rapidly, many human rights advocates say, that is what should be done.