II. Returns to Tunisia
The United States has brought a total of 12 Tunisians to Guantanamo, most of them in 2002. The US has not brought charges against any of these men.
On June 17, 2007, the United States sent home two of the 12, relying in part on promises of humane treatment from the Tunisian government.6 During the last week of July two Human Rights Watch researchers traveled to Tunisia to track the fate of these two men. While the government declined a request by Human Rights Watch to speak with the detainees, we talked to their lawyer and family members who had been in contact with them, and found that the mens situation is bleak.7
Abdullah al-Hajji, a 51-year-old father of eight, left Tunisia with his family in 1990.
In 1995 a Tunisian military court convicted himin absentia for participating in a terrorist organization operating abroad. Tunisias Military Penal and Procedural Code (majalla al-murafa`at wal-`uqubat, hereinafter the Code of Military Justice) gives military courts jurisdiction over civilians charged with serving a terrorist organization operating abroad.
The primary evidence against al-Hajji appears to have been the statement that one of his 19 codefendants made to the police in 1993, in which he claimed that al-Hajji had taken a leadership position in an organization known as the Tunisian Islamist Front while in Pakistan. Al-Hajjis lawyer, Samir Ben Amor, based on his experience from similar cases, considers it likely that this incriminating statement was the product of torture and abuse.8
At the time of al-Hajjis transfer, his lawyer in the US, Clive Stafford Smith, who had learned of the conviction only a short time before, was in Guantanamo trying to meet his client to inform him of it. But al-Hajji, who had spent five years in Guantanamo,9 was put on a plane and sent to Tunisia before his lawyer could contact him.
Al-Hajji has since told his Tunisian lawyer, Ben Amor, that neither the Tunisians nor Americans ever informed him of the 1995 conviction before sending him home.10
On June 18 al-Hajji landed in Tunisia after a long military flight during which US officials reportedly kept him blindfolded, hand- and feet-cuffed, and strapped to his seat. He says that the Tunisians replaced his blindfold with a hood when the plane landed on Tunisian soil.11
Al-Hajji reported that Tunisian authorities subjected him to a brief period of questioning, apparently at the airport, followed by two days of interrogation at the Ministry of Interior in Tunis. Al-Hajji told his lawyer that ministry officials slapped him, threatened him with the rape of his wife and daughters, and shook him awake every time he started to sleep. In the end, said al-Hajji, he signed the paper officials presented to him even though his glasses were so out of date and his eyesight so bad he could not read it and had no idea what it said.12
On June 20, two days after his return home, al-Hajji appeared before the military court that had convicted him in absentia, and contested this prior conviction. The court scheduled a retrial for September 26, 2007, and ordered that police hold him in pretrial detention.13 Authorities placed al-Hajji at Mornaguia prison, a large, new facility about 30 minutes drive outside Tunis.
In a letter to the Washington Post, dated July 17, a Tunisian official denied the allegations regarding al-Hajjis treatment during the first two days after his return to Tunisia, saying al-Hajji was not mistreated in Tunisia after his release on June 18 from the US detention facility at Guantanamo Bay, contrary to the baseless allegations attributed to his lawyer. No threat was ever made against him or his family. The official also asserted that al-Hajji has not been questioned yet by judicial police or by the appointed judge. Rather, the police who had custody of him merely established an arrest report before presenting him to court to answer to his in absentia conviction.14
On July 31 Human Rights Watch submitted a letter to the Tunisian Ministry of Justice asking for further clarification about al-Hajjis treatment since return, including information on the following: where they had held al-Hajji between his arrival in Tunis on June 18 and June 20; whether any police agency other than the judicial police questioned al-Hajji; and whether al-Hajji signed a statement while in police custody, and if so, the nature of that statement.15
An official from the ministry responded on August 10 with the same general denial provided to the Washington Post, stating: [Al-Hajji] was not subjected to any mistreatment. The judicial police took custody of [him] and referred [him] directly to the proper judicial authorities. The official did not answer any of the specific questions about al-Hajjis treatment in the two days after he arrived in Tunis.16
Al-Hajji told his lawyer that upon arrival at the prison, he was placed in solitary confinement in a poorly ventilated room he called his tomb. The authorities allowed him out for only 15 minutes a day in an enclosed exercise space without any natural light. He told his lawyer that he had no idea what time it was, and therefore could not properly time his daily prayers according to Islamic ritual. He said that whenever the guards took him out of his cell, they cleared the common spaces of all other prisoners so that he would have absolutely no contact with other inmates. And while al-Hajji has seen a general physician since arriving at Mornaguia, he had not, as of August 15, obtained glasses appropriate for his vision, and therefore could not even pass the days by reading.17
Al-Hajjis confinement in a solitary cell lasted for over five weeks. In April 2005 the Tunisian government had made a commitment to Human Rights Watch to end the use of prolonged solitary confinement of prisoners.18
Al-Hajji told his lawyer that he was finally moved out of solitary and into a cell with common-law prisoners during the first week of August.19 The August 10 communication from the Tunisian Ministry of Justice to Human Rights Watch confirmed that both [al-Hajji and Lagha, the other detainee returned from Guantanamo] are detained in the company of three o[r] four other inmates.20 But the communication did not deny al-Hajjis claim that they had previously held him in solitary confinement.
On July 27, 2007, Human Rights Watch researchers met with Robert F. Godec, the US ambassador to Tunisia, to discuss the treatment of al-Hajji and Lagha. Ambassador Godec opened his remarks by saying, I personally, and the US government, are committed to human rights, including in the case of the Guantanamo detainees. We would not transfer individuals where it is more likely than not they would be tortured or mistreated. Ambassador Godec emphasized, We get assurances [from the Tunisian government] that are specific and credible, and we follow up on those assurances. We have to be confident that these people will be treated humanely when they are returned.
However, Ambassador Godec declined to answer any questions about the nature of the assurances provided by the Tunisians; whether al-Hajjis treatment since return had been consistent with these assurances; what, if anything, the US was doing to follow up on these assurances; and what, if anything, they were doing to help ensure that al-Hajji receive a fair retrial. Ambassador Godec would not even say whether any representative from the US government had yet met with al-Hajji to assess and monitor compliance with the assurances.21
Tunisian authorities have granted both al-Hajjis lawyer, Samir Ben Amor, and the International Committee of the Red Cross (ICRC) access to him. The ICRC maintains strict confidentiality in its prison visits and shares its findings only with the Tunisian authorities; its visits do not result in public information on detainee treatment.
The authorities have also allowed al-Hajjis family members weekly visits of 15 minutes each, with the visits monitored by prison guards. Al-Hajjis family told his lawyer, Ben Amor, that the local police have ordered them to report on the content of their conversations.
Less is known about the plight of Lotfi Lagha, a 38-year-old from a remote village in southern Tunisia, who never had a lawyer during his five years at Guantanamo and was not granted access to an attorney in Tunisia until August 9, 2007, more than seven weeks after being returned there.
Lagha is now represented by Samir Ben Amor, the same lawyer who represents al-Hajji.22 Lagha has told Ben Amor that he left Tunisia in 1998, traveled to Italy, and eventually ended up in Pakistan, where he was arrested in 2002. Lagha reports that he was initially held at the Bagram Air Force Base in Afghanistan, where he says several frostbitten fingers were amputated without his consent.23 A relative who visited Lagha confirmed that he is missing several fingers on both hands.24
Although Lagha had no outstanding charges or unserved sentences pending when he returned to Tunisia, an investigating judge25 has, since his return, reportedly recommended he be charged with participating in a terrorist organization operating abroad.26 A trial is now reportedly scheduled for November 2007.27
Lagha told Samir Ben Amor that upon his arrival in Tunisia, authorities immediately hooded him and took him to the Ministry of Interior building. There, after photographing him and conducting a medical examination, authorities interrogated him until 11 p.m. They questioned him intermittently during the next three days, and threatened him with torture but never actually beat him. Lagha said that on June 21 the police brought him before a civil court investigating judge. He was not told of his right not to answer questions without his lawyer present; rather, he was told that he could appoint a lawyer at the end of this questioning.28 The judge recommended charging Lagha with involvement in a terrorist organization and ordered his detention pending the ongoing investigation.29
Lagha told Ben Amor that he was held in solitary confinement in Mornaguia prison until August 7, when he was transferred to a cell with common-law prisoners. He told Ben Amor, I would rather return to Guantanamo than remain in these conditions.30 Lagha also told a relative who visited him that he had been placed in solitary confinement upon his arrival at Mornaguia, and that under the circumstances he would have preferred to remain in Guantanamo.31
Lagha told Ben Amor that while he was in Guantanamo, he had informed ICRC representatives that he did not want to return to Tunisia.
During the last week of July, some of Laghas relatives made the 500-kilometer trip to Tunis from their family home in Medenine governorate in southern Tunisia to see him for the first time. They said the family had lost touch with him around 2000 and did not even know he had been in Guantanamo; their parents thought he was dead, according to one of the relatives. The family said they first learned of his whereabouts when the pan-Arab al-Arabiya television channel reported that Lagha was on his way home from Guantanamo to Tunisia.32
As with al-Hajji, US Ambassador Godec declined to disclose to Human Rights Watch whether, when, and how the US government was monitoring Laghas treatment, whether it comported with the promises of humane treatment that Tunisia had provided, and if not, what the US was doing to enforce those promises.
Lagha told his lawyer, Samir Ben Amor, on August 15 that no American had yet visited him since his return to Tunisia.33
6 Communications from US administration officials to Human Rights Watch, June-July 2007. Despite repeated requests, the US has refused to provide any details about the nature of these assurances.
7 Letter from Human Rights Watch to Béchir Tekkari, Tunisian minister of justice, July 27, 2007, in which Human Rights Watch requested permission to visit Hajji and Lagha in prison. An official of the Ministry of Justice responded that the detainees can be visited by their families, lawyers, and the International Committee of the Red Cross (ICRC) (see Appendix C).
8 Human Rights Watch interview with Samir Ben Amor, Tunis, July 25, 2007. Abdullah Hajji Ben Amor and Samir Ben Amor are not related.
9 Hajji was reportedly arrested by the Pakistanis in 2002, handed over to the United States, and sent to the Guantanamo prison camp.
10 Human Rights Watch interviews with Samir Ben Amor, Tunis, July 25 and July 27, 2007 (see Appendix A for Samir Ben Amors sworn statement regarding his communications with Hajji).
13 Under article 180 of the Code de Procédure Pénale (CPP) (Tunisian Penal Procedure Code), persons convicted in absentia are usually entitled to a new trial when they appear before judicial authorities and contest their conviction.
14 Taoufik Chebbi, press counselor, Embassy of Tunisia to the United States, letter to the editor, Washington Post, July 18, 2007.
15 Letter from Human Rights Watch to Béchir Tekkari, Tunisian minister of justice, July 31, 2007 (see Appendix B).
16 Statement by official of the Tunisian Ministry of Justice and Human Rights, August 10, 2007 (see Appendix C).
17 Human Rights Watch telephone interview with Samir Ben Amor, August 18, 2007. Ben Amor visited Hajji in prison on August 15.
18 Tunisia Pledges to End Long Solitary Confinement, Human Rights Watch news release, April 20, 2005, http://hrw.org/english/docs/2005/04/20/tunisi10523.htm.
19 Email communication from Samir Ben Amor to Human Rights Watch, August 4, 2007.
20 Statement by official of the Tunisian Ministry of Justice and Human Rights, August 10, 2007 (see Appendix C).
21 Human Rights Watch interview with Robert F. Godec, United States ambassador to Tunisia, Tunis, July 27, 2006.
22 When Ben Amor had tried to see Lagha previously, in late July, he was turned away. And while the Tunisian authorities stated that, as of August 10, Lagha enjoys legal counsel and is represented by an attorney, (see Appendix C for the statement by an official of the Tunisian Ministry of Justice and Human Rights, August 10, 2007) they did not specify when the lawyer was first granted access, or whether Lagha was offered any legal representation, as is required under Tunisian law, when he was brought before the investigating judge on June 21.
23 Email communication from Samir Ben Amor to Human Rights Watch, August 11, 2007. Information based on what Lagha told Ben Amor in a meeting on August 9, 2007. See also Bouazza Ben Bouazza, Tunisian Sent Home from Guantanamo Says He Was Beaten by US Soldiers, Associated Press, August 12, 2007.
24 Human Rights Watch interview with relatives of Lotfi Lagha, Tunis, July 2007 (names and dates withheld). On July 27 Lagha received his third family visit since his arrival in Tunisia.
25 A juge dinstruction (investigating judge) is the magistrate who assesses the evidence and recommends whether to pursue charges.
26 Human Rights Watch interview with Samir Ben Amor, Tunis, July 27, 2007; and email communication from Samir Ben Amor to Human Rights Watch, August 11, 2007.
27 Ben Bouazza, Tunisian Sent Home from Guantanamo Says He Was Beaten by US Soldiers in Afghanistan, Associated Press.
28 Email communication from Samir Ben Amor to Human Rights Watch, August 16, 2007. Information based on a meeting between Ben Amor and Lotfi Lagha on August 15, 2007.
29 Email communication from Samir Ben Amor to Human Rights Watch, August 11, 2007. Ben Amor said that based on his review of Laghas case files, the judge had recommended charging Lagha with articles 52bis, 131, and 132 of the Penal Code. These articles, taken together, refer to participation in a criminal enterprise for the purpose of carrying out terrorism as Tunisian law defines it.
30 Email communication from Samir Ben Amor, August 11, 2007. Information based on a meeting between Samir Ben Amor and Lotfi Lagha on August 9, 2007.
31 Human Rights Watch interview with a relative of Lotfi Lagha, Tunis, July 2007 (name and date withheld).
33 Email communication from Samir Ben Amor, August 16, 2007.