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V. Other Guantanamo Detainees at Risk

Of the 355 detainees still being held in Guantanamo, approximately four dozen from countries such as Algeria, China, Libya, Tunisia, and Uzbekistan—all countries with known records of torture—have told their attorneys that they are so fearful of torture or other abuse that they do not want to return home. Another nine who are either unrepresented or never met with their lawyer come from such “at-risk” countries and may also have valid repatriation concerns. Detainees from other countries may also be at risk because of the particular circumstances of their case.

Before passage of the Military Commissions Act of 2006, which strips court jurisdiction over detainees’ habeas corpus claims and any other suit challenging conditions of confinement, treatment, or transfer,73 detainees could as part of habeas petitions request from the court what are known as 30-day notices, requiring advance notice to the detainee and his lawyer prior to any transfer abroad. Some detainees who got such notice subsequently asked for a review and stay of the transfer on the basis that there were substantial grounds for believing that they would be in danger of being subjected to torture upon return, pursuant to the Convention against Torture, which the United States ratified in 1994.74 Since passage of the Military Commissions Act, most courts have now concluded that they do not have jurisdiction to stop a transfer, no matter how likely the risk of abuse upon return.75

As a result, the decision whether to transfer is exclusively within the executive branch’s discretion, without any independent and transparent review of the decision to transfer. The Bush administration claims to take into account information provided by the International Committee for the Red Cross, which has access to Guantanamo Bay detainees prior to their departure, regarding a detainee’s fear of return.76 But the ICRC’s strict confidentiality means there is no way to assess how much weight, if any, the administration gives its recommendations.77

In some cases, the administration has found these concerns legitimate and decided not to send the detainees home. It has sent eight detainees—five Chinese Uighurs, an Algerian, an Egyptian, and a Russian—to Albania rather than return them to their home countries. And it is reportedly still trying to find a country that will accept the remaining 17 Uighurs in Guantanamo, all of whom it has concluded it cannot return to China. But the process of finding a third-party country, let alone an appropriate one, is concededly not easy. To date, only Albania has stepped forward, but it has resettled just eight detainees.78

As a result, the US government appears to be turning more and more to the use of diplomatic assurances—promises of humane treatment—from the government of the detainee’s home country as a means of mitigating the risk of abuse. The Tunisian government reportedly provided such assurances prior to the transfer of al-Hajji and Lagha. And the US is reportedly negotiating such assurances with Algeria, which still has 26 detainees in Guantanamo, and Libya, which has nine. Both are countries with known records of torture.79

The effort to mitigate the risk of abuse that detainees face when they voluntarily choose to return home to a country with a poor record on torture is a positive development. But assurances cannot—and should not—be relied upon as sufficient protection to override the credible fear of torture and mistreatment of detainees who do not want to return.

The cases of al-Hajji and Lagha support our concerns.

Despite the assurances of humane treatment, al-Hajji reports being immediately taken to an interrogation center, where he says he was prohibited from sleeping, slapped, threatened with the rape of his wife and daughters, and coerced into signing something he could not read. He says that he was held for six weeks in solitary confinement, even though the Tunisian government had explicitly pledged to Human Rights Watch to end the use of prolonged solitary confinement in prisons.

Similar concerns exist regarding the treatment of Lagha, whom Tunisian authorities also detained in solitary confinement. He was held for six weeks in pretrial detention without access to an attorney or any other outside monitor who could publicly report on his treatment and condition. For a detainee in a country like Tunisia, the lack of access to an attorney and the absence of independent, transparent monitoring heightens fears of mistreatment.




73 The Military Commissions Act (MCA) of 2006, S. 3930, October 17, 2006, sec. 7: Habeas corpus matters. The constitutionality of these court-stripping provisions is currently being challenged before the Supreme Court in Boumediene v. Bush. Briefing on the case is scheduled to be completed by October 9, 2007, and arguments are expected to take place near the end of the year.

74 Convention against Torture, art. 3, which prohibits the transfer of persons to countries where there are substantial grounds for believing that they would be in danger of being subjected to torture upon return.

75 See Zalita v. Bush, no. 07-5129 (D.C. Cir. filed Apr. 25, 2007) (per curiam) and no. 06A1005 (127 S. Ct. 2159 (Mem), 167 L.Ed.2d 886, 75 USLW 3607, U.S., May 1, 2007); see also Belbacha v. Bush, no. 07-5258 (D.C. Cir. filed Aug. 2, 2007) (per curiam) and no. 07A98 (S. Ct. filed Aug. 10, 2007); and see also Hamlily v. Gates, no. 07-1127 (D.C. Cir. filed Jul. 16, 2007) (per curiam).

76 Communications from administration officials to Human Rights Watch, May-June 2007.

77 According to legal counsel for detainees, the ICRC does not conduct its “exit interview” with the detainee until days prior to the scheduled transfer, once all of the agreements for transfer have already been worked out and changing course would be difficult.

78 These detainees did not have previous ties to Albania and are now living in a refugee camp outside of Tirana, the capital, where they are having difficulty finding jobs and integrating into the society. See Llazar Semini, “Albania Confirms It Will Shelter 3 Released Guantanamo Detainees,” Associated Press, November 18, 2006; see also Tim Golden, “Chinese Leave Guantanamo for Albanian Limbo,” New York Times, June 10, 2006; and see also Jackie Northam, “Morning Edition: Guantanamo Prisoner Release Becomes Challenging,” National Public Radio, August 7, 2007.

79 US State Department, Bureau of Democracy, Human Rights, and Labor, “Country Report on Human Rights Practices – 2006: Algeria”, March 6, 2007, http://www.state.gov/g/drl/rls/hrrpt/2006/78849.htm (accessed August 13, 2007), which describes “abuse and torture” as among the “significant human rights problems” in Algeria; and US State Department, Bureau of Democracy, Human Rights, and Labor, “Country Report on Human Rights Practices – 2006: Libya,” March 6, 2007, http://www.state.gov/g/drl/rls/hrrpt/2006/78858.htm (accessed August 13, 2007), sec. 1.c., which states, “The law prohibits such practices, but security personnel routinely tortured prisoners during interrogations or as punishment.”