Four Men Leave Guantanamo; Two Face Ill-Defined Trials In Italy

On Monday, the Obama administration announced that it
had transferred four prisoners from Guantanamo: Sabir Lahmar, an
Algerian, was transferred to France; an unidentified Palestinian was
transferred to Hungary; two Tunisians, Adel Ben Mabrouk bin Hamida
Boughanmi and Mohammed Tahir Riyadh Nasseri, were transferred to the
custody of the Italian government.

Sabir Lahmar, an Algerian, Freed in France

Sabir Lahmar's release was long overdue. An Islamic scholar, he was
living in Bosnia-Herzegovina and working for a charity, the Saudi High
Committee for Relief, when, in October 2001, the US government accused
him and five other Algerians living in Bosnia-Herzegovina as citizens or
residents, of plotting to blow up the US embassy in Sarajevo. After a
three-month investigation, which the Bosnian authorities were forced to
undertake by the US government (human rights activist Srdjan Dizdarevic
said that "the threats from the Americans were enormous" and that there
"was a hysteria in their behavior"), the men were cleared of all
charges. However, on January 18, 2002, as they were released from
custody, they were kidnapped by US agents and sent to Guantanamo, where
they endured brutal treatment and discovered that the US authorities had
no interest in the supposed bomb plot, and were, instead, using them in
an attempt to secure intelligence about Arabs who had settled in
Bosnia-Herzegovina after the ethnic war of 1992-95.

In November 2008, the six men finally had the opportunity to challenge
the basis of their detention in a US court. Their hearing took place
five months after the Supreme Court granted the prisoners constitutionally
guaranteed habeas corpus rights, after ruling that legislation
passed by Congress in 2005 and 2006, which purported to strip the
prisoners of the habeas rights that the Supreme Court had first granted
them in June 2004, was unconstitutional.

District Court Judge Richard Leon, a no-nonsense appointee of President
George W. Bush, granted
the habeas corpus petitions of five of the six men, including
Lahmar, after concluding that the government had provided no credible
evidence that, as was alleged in place of the bomb plot, they intended
to travel to Afghanistan to take up arms against US forces. The sixth
man, Belkacem Bansayah, was ruled to be legally detained as an "enemy
combatant," based on the government's claims that he was "link[ed] to
al-Qaeda and, more specifically, to a senior al-Qaeda facilitator,"
although he is currently
appealing the ruling.

In his ruling, Judge Leon also implored the Justice Department, the
Defense Department and the intelligence agencies not to appeal his
verdict, which would "at a minimum, constitute another 18 months to two
years of their lives." As he explained, "It seems to me that there comes
a time when the desire to resolve novel, legal questions and decisions
which are not binding on my colleagues pales in comparison to effecting a
just result based on the state of the record."

Nevertheless, although three of the five men - Mustafa Ait Idr, Hadj
Boudella and Mohammed Nechla - were
released within weeks of the decision, the fourth, Lakhdar
Boumediene, had
to wait until May to be freed, when he was accepted by the French
government, and Lahmar has had to wait for another six months before he
too was given a new home in France.

Speaking to AFP, Rob Kirsch, Lahmar's attorney, said that his
client, who is now 39 years old, will be allowed "to rebuild his life as
a free man after nearly eight years of illegal detention. Mr. Lahmar
suffered years of inhumane, isolating imprisonment. He was separated
from other human contact until one month after Judge Leon ruled that the
detention of Mr. Lahmar was illegal." He also praised French President
Nicolas Sarkozy and Foreign Minister Bernard Kouchner as "straight
shooters throughout this process," adding, "We appreciate the
opportunities they have given to Sabir Lahmar and Lakhdar Boumediene."

A Palestinian Freed in Hungary

Little news has yet emerged about the prisoner released in Hungary. On
September 16, Prime Minister Gordon Bajnai announced that Hungary "would
take in one former prisoner, likely to be a Palestinian national," and
last week Gabor Juhasz, the minister in charge of the civilian secret
services, confirmed
that the Hungarian government had "given its official consent to
the Hungary-US agreement on accepting a detainee from Guantanamo." He
added, however, that, in common with the other releases in Europe in
recent months (in
Portugal, Ireland
and Belgium,
the government had decided "not to disclose the identity of the former
prisoner, the person's time of arrival or place of residence." He also
explained that the government would "provide support to the former
detainee for settling in the country, including "access to health-care
services, language learning opportunities [and] assist[ance] in finding a
job."

From Jail to Jail: Tunisians Transferred to Italian Custody

This is good news for Sabir Lahmar and the unidentified Palestinian, but
for Adel Ben Mabrouk bin Hamida Boughanmi and Mohammed Tahir Riyadh
Nasseri, the two Tunisians transferred to Italian custody, the future
looks as bleak as the last seven years that they have spent in
Guantanamo. As the Justice Department explained in a
press release announcing their transfer, "Both detainees are the
subject of outstanding arrest warrants in Italy and will be prosecuted
there.... These transfers were carried out pursuant to a Memorandum of
Understanding concluded by Attorney General Eric Holder and Italian
Justice Minister Angelino Alfano in September. The United States has
coordinated with the government of Italy to ensure the transfers take
place under appropriate security measures and will continue to consult
with the government of Italy regarding these detainees."

This perhaps sounds relatively innocuous, but as
I reported in July, when the rumors first surfaced that Silvio
Berlusconi had agreed to take a number of Tunisian prisoners from
Guantanamo, there are serious doubts about the circumstances in which
the prisoners have been transferred. These are not alleviated by the
careful mention of a Memorandum of Understanding, and they hardly
warrant the thanks extended by the DoJ - "The United States is grateful
to the government of Italy for helping achieve President Obama's
directive to close the Guantanamo Bay detention facility" - unless that
sentence were to be followed by the words, "by any means necessary."

As Daniel Gorevan, a spokesman for Amnesty International, noted
in March, after EU Justice Commissioner Jacques Barrot stated that
the US government had raised the possibility of a Memorandum of
Understanding between the EU and the US on the protection of detainees
in Guantanamo, during a meeting on March 17, "Any memorandum of
understanding between the USA and Europe on Guantanamo detainees must
take into account this fundamental requirement: all detainees who are
not charged and tried fairly in US courts must be released safely."

This is clearly not the case with the two men who have just arrived in
Italy from Guantanamo,
as I explained in July, when reports in La Repubblica and
information obtained from sources in the United States allowed me to
confirm that, after the US government informally asked the Italian
government in April to take six or seven prisoners from Guantanamo, the
Department of Public Security and the Ministry of Justice compiled a
list of Guantanamo prisoners who had criminal proceedings pending
against them in Italy, and then focused on three prisoners, including
Boughanmi and Nasseri, on the basis that they would be transferred from
Guantanamo to Italian jails.

As I also noted:

La Repubblica suggested that Roberto Maroni, the
Minister of the Interior (and a member of Italy's notoriously right-wing
Northern League), only approved their transfer when he received
reassurances that they would not be set free, and this was confirmed in
an article
in the Christian Science Monitor, in which reporter Anna Momigliano
wrote that Maroni, whose party was bluntly described as "oppos[ing] the
presence of Muslim immigrants" in Italy, stated, "I oppose taking [the
prisoners] in, as long as we are not sure they will be kept behind
bars."

La Repubblica added that the prisoners would not
receive "credit" for their seven years in Guantanamo, and noted that, in
2007, the Milanese Public Prosecutor's Office had requested extradition
of two of the men, but the Ministry of Justice refused to forward the
extradition request to the US government because Guantanamo was "not US
territory." As a result, it is understood that the US government's
transfer of the men to Italian custody will not involve extraditing
them, but rather expelling them, and the Italian government can
therefore treat them not as prisoners who have already served a jail
sentence, but as fugitives who are obliged to serve a full term. As a
source in the United States explained, this novel approach to disposing
of prisoners in Guantanamo is actually a form of "rendition."

These fears have not been allayed with the transfer, under the cover of a
Memorandum of Understanding, of two of the three men mentioned in July.
Both were taken into custody on their arrival in Milan, and are
currently being questioned, and no indication has yet been provided as
to whether they will face a trial, and whether their lost years in
Guantanamo will be taken into account should they be sentenced.

The Fog of Evidence

In the fog of rumors and allegations surrounding the men, it is
difficult to know where the truth lies. According to
Italian prosecutors, both were involved with an Islamic center in
Milan that had connections with al-Qaeda, and arrest warrants for both
men were issued while they were in Guantanamo. In 2005, Boughanmi was
accused of "international terrorism, falsification of documents, aiding
illegal immigration, theft and drug trafficking," and in 2007 Nasseri
was accused of "organizing in Afghanistan the logistics for fighters
coming from Italy 'where they were trained in the use of weapons and in
preparation for suicide attacks,'" and was also described as "the head
of the Tunisians in Afghanistan, 'from where he maintained constant
relations with the structures in Italy and Milan.'"

However, Boughanmi, who was 31 years old when he was seized crossing
from Afghanistan into Pakistan, explained
to his lawyers that he worked in restaurants in Naples and Rome,
and as a barber in Milan, and stated that he traveled to Afghanistan in
early 2001, "because I became a Muslim when I was in Europe. My country
was very tough on the Muslims. Afghanistan was a country where they were
willing to take anybody, you don't need any money to live there, and
they welcome all the Muslims."

In addition, as I explained in July:

In Guantanamo, he [Boughanmi] denied an allegation
that he was part of a terrorist network in Italy, and that he "possibly"
falsified passports "for fleeing al-Qaeda combatants who make it to
Europe" (that use of the word "possibly" generally indicating that even
the US military regarded the allegation as unreliable). He also refuted
allegations that he was an "extremist" in Bosnia-Herzegovina during the
civil war, and, to prove it, showed the tribunal the visa stamps in his
passport, which he requested as evidence. The information about his
purported activities in the former Yugoslavia was apparently provided by
the Tunisian government, which had sentenced him in absentia to 20
years in prison for allegedly being a member of a terrorist organization
operating abroad.

Less is known publicly about Nasseri, who was 35
years old at the time of his capture in Afghanistan, because he refused
to take part in any of the military review processes at Guantanamo (the
Combatant Status Review Tribunals and the annual Administrative Review
Boards), although it was noted that he refuted all the allegations
against him. Some of these related to the Italian arrest warrant
mentioned above, a claim that he fought in Bosnia may have come from the
Tunisian government (which gave him a ten-year sentence in absentia for
being a member of a terrorist organization operating abroad), and no
clue whatsoever was provided to back up an allegation that he "led a
band of thieves in Italy and Spain who cooperated with Algerian
terrorists."

Most worrying is the claim that he was "the head of the Tunisians in
Afghanistan," which may, of course, be true, but what makes it
suspicious in the context of the intelligence-gathering at Guantanamo is
that it comes from an allegation that he was "identified by a senior
al-Qaeda lieutenant as having trained at the Khaldan camp and that he
eventually took over as the Emir of the Tunisian Group in Afghanistan."

References to "a senior al-Qaeda lieutenant" in proceedings at
Guantanamo invariably refer to "high-value detainees," who, at the time,
were held in secret CIA prisons where they were subjected to "enhanced
interrogation techniques" approved by lawyers in the Justice
Department's Office of Legal Counsel; in other words, where they were
tortured.

There is, of course, no indication as to who this particular "high-value
detainee" was, but as the reference is to the Khaldan training camp, it
seems likely that the allegation was made either by Abu
Zubaydah (the gatekeeper of the camp, and the CIA's
most well-known torture victim, along with Khalid
Sheikh Mohammed or by Ibn al-Shaykh al-Libi, the CIA's most famous
"ghost prisoner." Tortured in Egypt in 2002, al-Libi made a
false confession about links between al-Qaeda and Saddam Hussein
that was used to justify the invasion of Iraq. Rendered
to various other prisons run by or on behalf of the CIA in the four
years that followed, he was returned to Libya in 2006, where he
died in May this year, reportedly by committing suicide.

With al-Libi conveniently out of the picture, and
Abu Zubaydah psychologically destroyed (in April this year, one of
his attorneys, Joe Margulies, wrote that he "has permanent brain
damage," and that, "In the last two years alone, he has experienced
about 200 seizures"), it seems unlikely that any of these doubts about
Nasseri will ever be addressed.

For their part, the Italian authorities seem to be relying heavily on an
informer, Lazhar
Ben Mohamed Tlil, a Tunisian who traveled to Afghanistan to
undertake military training and who is now the main source of
information - for US officials as well as the Italian authorities - on
the movements of Tunisians and others in Afghanistan and Europe. Three
weeks ago, Italian prosecutor Elio Ramondini told the Associated Press
that, without Tlil, the prosecution of the Guantanamo suspects in Italy
"is not difficult, it is impossible."

Whether Tlil deserves this star billing is unknown. His testimony may,
for example, be unreliable, but perhaps a court can sort that out if he
remains cooperative. For now, his lawyer has explained that he is
"unhappy with Italy's witness protection program," and feels
"abandoned," and that, as a result, he is "threatening to withhold
testimony," both from the Americans, who want him to testify in the
United States, and also from the Italian prosecutors.

Just as troubling, given the lack of information about the circumstances
of the men's transfer to Italy, is the fact that the
Italian government announced on Tuesday that it was still looking
at a number of other cases of prisoners in Guantanamo. Franco Frattini,
the foreign minister, said that Italy has agreed "to take in others,"
but added, "we haven't pinpointed yet" which prisoners to take.

If trials are justified on the basis of genuine evidence of wrongdoing,
then it will presumably be acceptable that extraditions, expulsions or
"renditions to justice" are a new tool for a president who has
allowed so many doors to shut on his plans to close Guantanamo, but
without transparent and reliable assurances that trials will be fair,
and that the men will receive credit for their lost years in Guantanamo,
I fail to see how this deal between Barack Obama and Silvio Berlusconi
can be regarded as a valid step forward in bringing to an end the
injustices of Guantanamo and the "War on Terror."