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Daphne Eviatar

Daphne Eviatar

Posted: July 28, 2010 11:33 AM

Prisoners Deserve a Hearing Before Being Sent to Countries That Torture

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Last week, the United States government transferred an Algerian national, imprisoned for the last eight years at the U.S. detention facility at Guantanamo Bay, Cuba, back to his home country.

Normally, such transfers are a cause for celebration by the prisoners involved. But the reaction of 35-year-old Abdul Aziz Naji was markedly different: he was terrified. That's in part because the Algerian government has a bad track record for its treatment of anyone arrested on "security grounds." In fact, the U.S. State Department reports that in such cases, Algerian authorities still use torture to elicit confessions. A recent decision from the European Court of Human Rights reached the same conclusion, blocking a transfer to Algeria from France.

Naji also argued that he was afraid of local fundamentalist groups terrorizing him into fighting for their cause. In fact, he'd fled Algeria as a teenager precisely because he'd been attacked by extremists. As a result, Naji begged the U.S. government to allow him to remain in prison at Guantanamo rather than be returned to Algeria. But the U.S. government ignored that; it sent him to Algeria anyway.

Although Naji is now back home, reportedly under Algerian government surveillance, there are still another five Algerians left at Guantanamo Bay who are afraid to return home due to fear of mistreatment. Still other prisoners, from countries such as Tajikistan and Morrocco, have similar fears. And terror suspects arrested by U.S. authorities and sent to another country for interrogation and prosecution, under current U.S. rendition policy, face a similar risk.

The U.S. government's actions in Naji's case don't bode well for any of them.

Under international law, the United States isn't supposed to transfer anyone to a country where they're likely to face torture or cruel, inhuman or degrading treatment. That's exactly what Naji fears will happen to him if he's arrested in Algeria. But he did not get an opportunity to make his case to any sort of neutral U.S. arbiter. Although the Obama administration said that the Algerian government had promised not to torture Mr. Naji upon his return, Naji never got a chance to explain why he's skeptical of that promise, and why he's still afraid.

Unfortunately, despite the requirements of the international Convention Against Torture, Naji's treatment complies with official U.S. policy. U.S. officials have insisted that they can send a prisoner or terror suspect to a country that's known to torture prisoners so long as that country provides "diplomatic assurances" -- essentially, an official promise -- that the person will be treated fairly. Perhaps the U.S. obtained such a promise from authorities in Algeria. But what are these "diplomatic assurances" worth?

As the United Nations and many other international experts have recognized, not much. According to Manfred Nowak, the U.N.'s Special Rapporteur on torture, "diplomatic assurances are unreliable and ineffective in the protection against torture and ill-treatment and such assurances," and are usually sought "from States where the practice of torture is systematic." They're also not legally binding.

Thus Maher Arar, for example, a Canadian terror suspect (who turned out to be innocent) rendered to Syria by the Bush administration, was brutally tortured under interrogation there, despite "diplomatic assurances" provided to U.S. authorities by the Syrian government.

Nowak and Martin Scheinin, the U.N. Rapporteur on Human Rights and Counter-Terrorism, last week protested the United States' return of Naji to Algeria.

Although Naji was never charged, tried or convicted of anything by the United States, his imprisonment for the last eight years, supposedly on security grounds, suggests he's likely to be a target of interest to the Algerian authorities.

Indeed, after he was returned home on July 18, his lawyers reported that he had disappeared. He was presumably held and interrogated in secret detention by Algerian security forces.

Then on Monday, Reuters reported that he'd been returned home and was "resting." An Algerian prosecutor said he'd been treated lawfully.

Meanwhile, the Associated Press reported that Naji had been indicted on terrorism-related charges and placed under "judicial supervision."

Whatever Naji's status is now, it could change at any time. Even though the U.S. never charged him with anything, Algerian authorities could go a different route. Or they could detain him for questioning and torture him in prison. Now that the United States has released him, it no longer has any authority to determine his treatment.

But the U.S. doesn't have to follow suit for the other Algerian detainees still imprisoned without charge at Guantanamo, who similarly face repatriation against their will. Human Rights First has called on the Obama administration to back up its professed commitment against torture by systematically providing a hearing before a neutral arbiter before returning anyone in U.S. custody to a country where he fears persecution. The United States should stop relying on the "diplomatic assurances" that have proved utterly ineffective in the past.

 

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