clock menu more-arrow no yes

Filed under:

Judge halts a Gitmo transfer

Action taken to prevent possible torture of man

SAN JUAN, Puerto Rico — A federal judge in Washington has blocked the Pentagon from transferring a Guantanamo Bay detainee to Tunisia, where he allegedly faces torture, according to a ruling unsealed Tuesday that marked a milestone in the treatment of detainees.

The order by U.S. District Judge Gladys Kessler was unprecedented as a direct intervention in the case of a prisoner at Guantanamo Bay, where some 330 men accused of links to al-Qaida or the Taliban are held, according to a human rights group and the detainee's lawyers.

"This is the first time since Congress tried to strip court jurisdiction over detainees that a court stepped in and said to the administration, 'Hey wait. You can't do what you say you want to do,"' said Jennifer Daskal, senior counterterrorism counsel for Human Rights Watch.

Kessler said that detainee Mohammed Abdul Rahman, who has a heart condition, was convicted in absentia in Tunisia, sentenced to 20 years in prison and allegedly would face torture there, demonstrating "the devastating and irreparable harm he is likely to face if transferred."

In her ruling on Oct. 2 that was kept under seal until Tuesday, Kessler granted a preliminary injunction to halt the Defense Department's move to transfer Rahman to Tunisia. He was captured in Pakistan and allegedly handed over for a bounty. Deputy Secretary of Defense Gordon England cleared him for transfer after a military panel heard his case in 2005.

"In view of the grave harm Rahman has alleged he will face if transferred, it would be a profound miscarriage of justice if this court denied the motion" pending a U.S. Supreme Court ruling on rights of Guantanamo detainees, Kessler wrote in her ruling.

Joshua Denbeaux, Rahman's lawyer, praised the ruling.

"It's the first time the judiciary has given a detainee any substantive right — in this case it is the right not to be tortured by the Tunisian government," Denbeaux said.

Cynthia Smith, a Department of Defense spokeswoman, said the United States tries to ensure that repatriated detainees are not abused.

"Detainees are not repatriated to countries where it is more likely than not that they will be tortured," she told AP in an e-mail. "We take steps to ensure that mistreatment of detainees doesn't happen and upon hearing allegations of mistreatment, we investigate before initiating future transfers to that state."

But Human Rights Watch said last month that Tunisian authorities broke a pledge not to mistreat two former Guantanamo detainees who were sent home nearly four months ago. The group cited lawyers for Abdullah bin Omar and Lotfi Lagha as saying the two men were held in solitary confinement and mistreated — despite assurances by the Tunisian government to the United States that the two would not be harmed.

The Tunisian government denied the allegations.

In a March report, the State Department said the Tunisian government continues "to commit serious human rights abuses."

The State Department, citing human rights groups, said sleep deprivation, electric shock, submersion of the head in water, beatings and cigarette burns were among Tunisian security forces' torture methods.

The Center for Constitutional Rights, a New York group that represents dozens of Guantanamo detainees, applauded the judge's ruling.

"With nearly 50 detainees facing the possibility of torture if returned to countries with histories of severe human rights abuse, the question of resettlement has moved to the forefront of the issues surrounding Guantanamo," the center said.

The Supreme Court has been asked to determine whether Guantanamo detainees can use civilian courts to challenge their indefinite imprisonment under an age-old right known as habeas corpus. The justices twice before have ruled that suspected terrorists could pursue such challenges in civilian courts, but each time, the Bush administration and Congress, then under Republican control, changed the law to try to limit the detainees' rights.

In her ruling, Kessler said "it is imperative" that her court "protect its jurisdiction until the Supreme Court issues a definitive ruling."