82 In­mates Cleared but Still Held at Guan­tanamo

U.S. Cites Dif­fi­culty De­port­ing De­tainees

The Washington Post Sunday - - Front Page - By Craig Whit­lock

LON­DON — More than a fifth of the ap­prox­i­mately 385 pris­on­ers at Guan­tanamo Bay, Cuba, have been cleared for re­lease but may have to wait months or years for their free­dom be­cause U.S. of­fi­cials are find­ing it in­creas­ingly dif­fi­cult to line up places to send them, ac­cord­ing to Bush ad­min­is­tra­tion of­fi­cials and de­fense lawyers.

Since Fe­bru­ary, the Pen­tagon has no­ti­fied about 85 in­mates or their at­tor­neys that they are el­i­gi­ble to leave af­ter be­ing cleared by mil­i­tary re­view pan­els. But only a hand­ful have gone home, in­clud­ing a Moroc­can and an Afghan who were re­leased Tues­day. Eighty-two re­main at Guan­tanamo and face in­def­i­nite waits as U.S. of­fi­cials strug­gle to fig­ure out when and where to de­port them, and un­der what con­di­tions.

The de­lays il­lus­trate how much harder it will be to empty the prison at Guan­tanamo than it was to fill it af­ter it opened in Jan­uary 2002 to de­tain fight­ers cap­tured in Afghanistan and ter­ror­ism sus­pects cap­tured over­seas.

In many cases, the pris­on­ers’ coun­tries do not want them back. Ye­men, for in­stance, has balked at ac­cept­ing some of the 106 Ye­meni na­tion­als at Guan­tanamo by chal­leng­ing the le­gal­ity of their cit­i­zen­ship.

An­other ma­jor ob­sta­cle: U.S. laws

that pre­vent the de­por­ta­tion of peo­ple to coun­tries where they could face tor­ture or other hu­man rights abuses, as in the case of 17 Chi­nese Mus­lim sep­a­ratists who have been cleared for re­lease but fear they could be ex­e­cuted for po­lit­i­cal rea­sons if re­turned to China.

Com­pound­ing the prob­lem are per­sis­tent re­fusals by the United States, its Euro­pean al­lies and other coun­tries to grant asy­lum to pris­on­ers who are state­less or have no place to go.

“In gen­eral, most coun­tries sim­ply do not want to help,” said John B. Bellinger III, le­gal ad­viser to Sec­re­tary of State Con­doleezza Rice. “Coun­tries be­lieve this is not their prob­lem. They think they didn’t con­trib­ute to Guan­tanamo, and there­fore they don’t have to be part of the so­lu­tion.”

A case in point is Ahmed Bel­bacha, 37, an Al­ge­rian who worked as a ho­tel waiter in Bri­tain but has been locked up at Guan­tanamo for five years. The Pen­tagon has al­leged that Bel­bacha met al-Qaeda founder Osama bin Laden twice and re­ceived weapons train­ing in Afghanistan. His at­tor­neys dis­pute the charges and say he was rounded up with other in­no­cents in Pak­istan in early 2002.

On Feb. 22, with­out ex­pla­na­tion, the Pen­tagon no­ti­fied Bel­bacha’s lawyers in Lon­don that he had been ap­proved to leave Guan­tanamo. De­spite en­treaties from the State De­part­ment, how­ever, the Bri­tish gov­ern­ment has re­fused to ac­cept Bel­bacha and five other im­mi­grants who had lived in the coun­try, be­cause they lack Bri­tish cit­i­zen­ship.

This month, Clint Wil­liamson, the State De­part­ment’s am­bas­sador for war crimes, vis­ited Al­giers to dis­cuss pos­si­ble ar­range­ments for the re­turn of two dozen Al­ge­ri­ans who re­main at Guan­tanamo, in­clud­ing Bel­bacha, but no break­throughs were re­ported. That coun­try has been slow to ac­cept its cit­i­zens.

Zachary Katznel­son, a lawyer who rep­re­sents Bel­bacha and sev­eral other pris­on­ers who have been cleared, said de­fense at­tor­neys have tried to speed up the process by con­tact­ing for­eign gov­ern­ments to see if there are any spe­cific ob­sta­cles to the re­turn of their clients. In many cases, he said, the pris­on­ers and of­fi­cials in their home coun­tries are will­ing to ap­prove the trans­fer, but the de­lays per­sist.

“The holdup is a mys­tery to me, frankly,” said Katznel­son, se­nior coun­sel for Re­prieve, a Bri­tish le­gal de­fense fund. “If the U.S. has cleared th­ese peo­ple and they want to go back, I don’t un­der­stand why they can’t just put them on a plane.”

Other pris­oner ad­vo­cates said the Bush ad­min­is­tra­tion has made its task more dif­fi­cult by ex­ag­ger­at­ing the threat posed by most Guan­tanamo in­mates — of­fi­cials re­peat­edly called them “the worst of the worst” — and re­fus­ing to ac­knowl­edge mis­taken de­ten­tions.

For­eign gov­ern­ments have also ques­tioned why U.S. of­fi­cials should ex­pect other coun­tries to pitch in, given that Wash­ing­ton won’t of­fer asy­lum to de­tainees ei­ther.

“This is a prob­lem of our own cre­ation, and yet we ex­pect other coun­tries to shoul­der the en­tire bur­den of a so­lu­tion,” said Ben Wizner, staff at­tor­ney with the Amer­i­can Civil Lib­er­ties Union. “There needs to be a world­wide so­lu­tion here. The U.S. has to bear some of that bur­den. It can’t sim­ply ex­pect its part­ners and al­lies to ab­sorb all its de­tainees.”

The 82 cleared pris­on­ers who re­main stuck in limbo come from 16 coun­tries in the Mid­dle East, North Africa and South Asia, ac­cord­ing to de­fense at­tor­neys who have re­ceived of­fi­cial no­ti­fi­ca­tion of their clients’ sta­tus.

The 17 Chi­nese Mus­lim sep­a­ratists make up the largest con­tin­gent. Other coun­tries with mul­ti­ple pris­on­ers await­ing re­lease in­clude Afghanistan, Su­dan, Tu­nisia, Uzbek­istan and Ye­men.

The Pen­tagon has re­duced the pop­u­la­tion at Guan­tanamo by roughly half since the peak of 680 peo­ple in May 2003, gen­er­ally by send­ing pris­on­ers back to their na­tive coun­tries. But U.S. of­fi­cials said progress has slowed be­cause of the com­plex­ity of the re­main­ing cases.

Of the roughly 385 still in­car­cer­ated, U.S. of­fi­cials said they in­tend to even­tu­ally put 60 to 80 on trial and free the rest. But the ju­di­cial process has like­wise moved at a glacial pace, largely be­cause of con­sti­tu­tional le­gal chal­lenges.

Only two peo­ple have been charged un­der a mil­i­tary tri­bunal sys­tem ap­proved by Congress last year. One of those cases has been ad­ju­di­cated. David M. Hicks, an Aus­tralian cit­i­zen, pleaded guilty in March to lend­ing ma­te­rial sup­port to ter­ror­ists. He was sen­tenced to nine months in prison and is sched­uled to be trans­ferred to Aus­tralia in May to serve his time there.

De­fense lawyers for some of the 82 cleared pris­on­ers whose re­lease is pend­ing said Hicks re­ceived a bet­ter deal than did their clients who were not charged with any of­fenses. “One of the cruel ironies is that in Guan­tanamo, you’ve got to plead guilty to be re­leased,” said Wizner, the ACLU at­tor­ney. “It’s the only way out of there.”

Com­pli­cat­ing the re­turn process is that vir­tu­ally all the pris­on­ers at Guan­tanamo come from coun­tries that the State De­part­ment has cited for records of hu­man rights abuses. Un­der U.S. rules, a pat­tern of abuses in a coun­try does not au­to­mat­i­cally pre­clude de­por­ta­tion there. Rather, U.S. of­fi­cials must in­ves­ti­gate each case to de­ter­mine whether an in­di­vid­ual is likely to face per­se­cu­tion.

The in­ves­ti­ga­tions are time-con­sum­ing and of­ten meet with re­sis­tance from the pris­on­ers’ home coun­tries, which can be sen­si­tive to sug­ges­tions that they al­low tor­ture, U.S. of­fi­cials said. In cases where there is a risk of mis­treat­ment, U.S. pol­icy is to ob­tain a writ­ten prom­ise from the host gov­ern­ment that the pris­oner will not be abused and that U.S. of­fi­cials will be al­lowed to mon­i­tor the ar­range­ment.

“It of­ten takes us months and months, or even years, to ne­go­ti­ate the hu­man rights as­sur­ances that we are com­fort­able with be­fore we will trans­fer some­one to an­other coun­try,” said Bellinger, the State De­part­ment’s le­gal ad­viser.

Hu­man rights groups have crit­i­cized the writ­ten as­sur­ances as un­re­li­able. In March, the New York­based group Hu­man Rights Watch is­sued a re­port on the fate of seven Rus­sians who were re­leased from Guan­tanamo three years ago, as­sert­ing that three of the men have been tor­tured since their re­turn.

The watch­dog group urged the U.S. gov­ern­ment to find third-party coun­tries will­ing to take Guan­tanamo in­mates who are judged to be at risk for po­lit­i­cal per­se­cu­tion. U.S. of­fi­cials coun­tered that they have tried to do that for years, with vir­tu­ally no suc­cess.

Only one coun­try has been will­ing to ac­cept Guan­tanamo pris­on­ers who had never pre­vi­ously set foot inside its borders. Last year, af­ter prod­ding by the State De­part­ment, the Balkan na­tion of Al­ba­nia agreed to take five Chi­nese sep­a­ratists who be­long to an eth­nic group known as Uighurs.

The men were cap­tured in late 2001 af­ter they crossed the Chi­nese border into Afghanistan and Pak­istan. Their at­tor­neys said they were mis­tak­enly taken into cus­tody and had not taken up arms against U.S. forces. U.S. of­fi­cials said dozens of coun­tries re­fused to grant asy­lum to the Uighurs for fear of an­ger­ing China, which con­sid­ers them ter­ror­ists for lead­ing a se­ces­sion move­ment in the west­ern prov­ince of Turkestan.

Sev­en­teen other Uighurs who were caught in sim­i­lar cir­cum­stances have been cleared for re­lease but re­main in Guan­tanamo be­cause the State De­part­ment has been un­able to find a home for them. Hu­man rights groups have pressed the U.S. gov­ern­ment to of­fer the men asy­lum, to no avail.

A se­nior U.S. of­fi­cial who spoke on con­di­tion of anonymity said that the Bush ad­min­is­tra­tion had con­sid­ered grant­ing the Uighurs asy­lum but that the idea was nixed by the De­part­ment of Home­land Se­cu­rity. The Uighurs would be re­jected un­der U.S. im­mi­gra­tion law, the of­fi­cial said, be­cause they once trained in armed camps and be­cause their sep­a­ratist front, the East Turkestan Is­lamic Move­ment, was la­beled a ter­ror­ist or­ga­ni­za­tion by the U.S. gov­ern­ment in 2002.

At­tor­neys for the Uighurs said their predica­ment has been com­pounded by the Pen­tagon’s un­will­ing­ness to say they don’t pose a na­tional se­cu­rity risk to the U.S. gov­ern­ment or its al­lies. In an­nounc­ing that the Uighurs had been ap­proved to leave Guan­tanamo, mil­i­tary of­fi­cials made a point of not­ing that they had not been ex­on­er­ated and were still clas­si­fied as en­emy com­bat­ants.

“It’s not a dis­tinc­tion that makes sense at all,” said Michael J. Stern­hell, a New York lawyer whose firm rep­re­sents four of the Uighurs. “It’s a caveat that the De­fense De­part­ment is of­fer­ing to cover it­self.”

Some hu­man rights ad­vo­cates said the Bush ad­min­is­tra­tion could speed things up by ask­ing the United Na­tions or an­other in­ter­na­tional body for help.

Man­fred Nowak, an Aus­trian law pro­fes­sor who serves as the U.N. spe­cial mon­i­tor on tor­ture, said Euro­pean al­lies and other coun­tries would con­tinue to duck re­quests to ac­cept re­leased pris­on­ers as long as the U.S. gov­ern­ment ap­proaches them sep­a­rately. An in­ter­na­tional com­mis­sion re­spon­si­ble for find­ing a so­lu­tion, he said, might carry more weight.

“If the U.S. is will­ing to do some­thing to close down Guan­tanamo, then it should be done in a co­op­er­a­tive man­ner with the in­ter­na­tional com­mu­nity,” Nowak said. “It’s a ques­tion of bur­den-shar­ing. Oth­er­wise, ev­ery in­di­vid­ual coun­try that the U.S. ap­proaches says, ‘Why us?’ ” Staff re­searcher Julie Tate in Wash­ing­ton con­trib­uted to this re­port.


Five Chi­nese sep­a­ratists of Uighur eth­nic­ity, shown with lawyer Sabin Willett, sec­ond from right, were sent to Al­ba­nia.

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