What Happened to Guantanamo?



On April 22, 2020, the InterAmerican Commission on Human Rights issued a decision on a case brought by the Center for Constitutional Rights and the Center for Justice and International Law  for a prisoner in Guantanamo. (IACHR. Report No. 29/20. Case 12.865. Merits (Publication). Djamel Ameziane. United States. April 22, 2020)  The full case (71 pages) can be read at:  https://www.oas.org/en/iachr/decisions/2020/USPU12865EN.pdf The case was brought on August 6, 2008 and approved for admissibility on March 20, 2012.  The plaintiffs had asked for precautionary measures that were issued on March 20, 2008. The precautionary measures prohibited torture and transfer to a country where the plaintiff would be tortured – they were ignored by the U.S.  A merits hearing was held on Sept 17, 2017 but Mr. Ameziane could not appear because it would have placed him in too much danger.

The allegations were that he was arbitrarily detained more than eleven years at Kandahar and Guantanamo Bay where he was subjected to torture, poor detention conditions, and other cruel and inhumane treatment. He alleged that he lacked access to an effective legal remedy and basic due process guarantees to challenge his detention and secure his release, as well as to obtain reparation for other harms suffered. He was forcibly returned to Algeria in 2013, in violation of the principle of non-refoulement, and that since that time he has been tried on terrorism charges by Algerian authorities and continues to suffer the effects of his decade in U.S. custody.

The U.S. issued a blanket denial but the facts were largely not disputed.  The Commission concluded that the State is responsible for the violation of articles I (life, liberty, and security), II (equality before the law), III (religious freedom and worship), IV (freedom of expression), V (protection of honor, personal reputation, and private and family life), VI (right to family and protection thereof), XI (protection of health and well-being), XVIII (fair trial), XXI (assembly), XXIII (property), XXIV (petition), XXV (protection from arbitrary detention), and XXVI (due process) of the American Declaration on the Rights and Duties of Man (the “American Declaration”). The U.S. has never signed the Convention itself so cases cannot go to the Inter-American Court but only to the Commission.

In all those eleven years, Ameziane was never charged with a crime and had no remedy.  Under President Bush, torture was accepted as an official policy of the United States in violation of all international treaties and international and domestic laws.  Though other countries offered to take Ameziane, he was forcibly returned to Algeria where he was detained and charged with terrorism.  Fortunately, in a legal system obviously far superior to ours, the charges were dismissed at the hearing.  But he continues to suffer today at the age of fifty from the inhumane treatment he received from the U.S.

The U.S. ignored the precautionary measures completely though they later admitted they had no evidence linking him to any involvement in any crimes or terrorism. They also took and kept his life savings of $11,000. The Government claimed that the Authorization for Use of Military Force gave them the right to detain, that torture was legal under the policy memo, and that everything was done according to law.  IACHR had ruled several times since 2002 that the process at Guantanamo violated the Inter-American Declaration but the U.S. claimed the detainees are not prisoners of war so not are covered under Geneva treaties or any other.

Djamel Ameziane was born on April 14, 1967, in Algiers, sixth in a family of eight children. He obtained a university degree in Algeria and worked there as a hydraulics technician; however, he fled Algeria in 1992 due to discrimination and harassment based on his religion as a practicing Muslim, and the fact he was a Berber.  In 2000 he sought asylum in Canada where his brother lived but was denied.  He then fled to Afghanistan but when the war got close he fled to Pakistan where he was sold by Pakistani authorities for a bounty.  This was a common practice at the time with prisoners worth $2,000 in Afghanistan and $5,000 in Pakistan. So when the locals turned in a person, the U.S. asked no questions. They just proudly reported the number of alleged “foreign combatants” captured to the press.

Throughout his time in U.S. custody, Mr. Ameziane alleged a series of acts perpetrated against him and his fellow detainees by U.S. agents—inter alia, beatings, death threats, threats to return him to a country where he would be tortured, the use of dogs to create terror, waterboarding, exposure to extreme cold temperatures for extended periods, removal/denial of clothing, sleep deprivation, sensory deprivation, interrogations lasting more than 30 hours, failure to provide adequate medical treatment, religious abuse and interference, psychological abuse, and solitary confinement—which have caused and continue to cause him lasting physical and psychological harm.

The decision goes into painful detail about the horrific treatment of Mr. Ameziane.  His medical care was a horror and unethical.  I’m not going to repeat it.  We have all read it or heard it before.  Yet we know and have known for decades that torture does not work. After he was finally able to file a habeas corpus, he was transferred into solitary and treated worse.

After Obama became president in 2009, things got better.  But in 2013 Ameziane participated in a hunger strike, was punished with isolation again, and then transferred to Algeria.  In the hunger strike, he lost 60 pounds and suffers the health issues from that to this day.  He was approved to move in 2008, and in 2013 the U.S. admitted they had no basis to hold him, but though two other countries agreed to take him, they refused and sent him to Algeria where he feared torture.  I find that ironic since he was already being tortured in the U.S.  This kind of deliberate cruelty is what we see daily under the current regime in behaviors at our southern border.

Once these institutions are established, once these kinds of people are in their jobs, it’s very hard to shut it down. The Patriot Act that stripped us of some of our liberties was passed after 911 and was to be a temporary measure.  It’s still in place – approved by both parties.  Progressive activists have managed to stop its renewal recently in the House but I fear how long that will last.

Having worked in fourteen different countries, I can assure you that we don’t “win hearts and minds” by this kind of behavior.  When people would tell me of horrific things done in their countries, I would say – we don’t do that.  I was wrong; we do.  And I’m ashamed.

Naturally Arizona has a tie to this type of government action. Terry Stewart, former AZ Department of Corrections director, stopped swilling from the public trough long enough to shill for MTC a private, for-profit prison.  He was part of a team including former MTC chief Lane McCotter that set up the Iraqi Prison system including Abu Ghraib – we all recall those photos. Senator Chuck Schumer called for an investigation into how Stewart got the job, and though the Department of Justice investigated him, they did not fault Stewart for any direct abuse of prisoners. His running buddy, Charles Ryan, returned from that scandal to become the Director of AZ DOC.  No wonder our state prisons are such hellholes and so horribly managed.

The torture memos that justified the behavior in Guantanamo were drafted by the U.S. Department of “Justice.” One of those drafters has gone on to be a judge. Attorney General Barr is now deploying the DOJ against whistleblowers and for convicted criminals who are friends of #45.  Whatever integrity DOJ had is shredded. That’s why the calls for DOJ to investigate the George Floyd murder may not be the wisest. Better the MN Attorney General Keith Ellison who has said he will ensure justice comes to the four officers.

The “law” that the U.S. relied on to disclaim any responsibility for the treatment of Ameziane and his continued detention was the Detainee Treatment Act (DTA) passed in December 2005, that expressly stripped federal courts of jurisdiction over any new Guantánamo habeas petitions and created a purported substitute remedy that consisted of review by the U.S. Court of Appeals for the District of Columbia Circuit of whether the military conducted the interrogations in compliance with the procedures established.  The “procedures established” by the U.S. were torture.

Some judicial relief finally came in June 2006 when the Supreme Court ruled in Hamdan v. Rumsfeldthat the military commissions established by the November 2001 Military Order violate U.S. and international law, and held that Common Article 3 of the Geneva Conventions (“at least”) applies to the trial of Guantánamo detainees by military commission..  In response, the U.S. Congress passed the Military Commissions Act (MCA) in September 2006, that authorized a new system of military commissions by statute, and expressly stripped the federal courts of jurisdiction to hear habeas or “any other” claims by Guantánamo detainees or any other individual captured after September 11, 2001, held as an “enemy combatant” in U.S. custody anywhere in the world.  But Ameziane was not held as an “enemy combatant.”   The U.S. did not dispute that he had never engaged in any acts of terrorism or hostility or even picked up a weapon or been to training.

Finally, on June 12, 2008, the Supreme Court held in Boumediene v. Bushthat the MCA’s habeas-stripping provision was unconstitutional with respect to Guantánamo detainees and that the review provided for under the DTA is not an adequate substitute for habeas. This decision reopened detainees’ ability to litigate their habeaspetitions before the federal courts. So from 2002 to 2008, Ameziane had no legal way to contest his wrongful detention.  He was cleared to be released in 2008 but held until 2013.  I suppose the military contractors needed to continue to receive those large sums of tax-payer dollars we supply for keeping Guantanamo open.

A blow from the court came in April 2009, when the D.C. Circuit Court held in Kiyemba v. Obama (known as Kiyemba II)—a case involving habeaspetitions by nine Guantánamo detainees challenging their transfer based on fear of torture in their home country—that the judiciary may not review executive branch decisions regarding when or where to transfer detainees from Guantánamo, and held invalid a district court ruling requiring the government to give a detainee’s counsel 30 days’ advance notice of the detainee’s transfer from Guantánamo.  This again removed review by the courts. In 2014, after Ameziane was gone, the D.C. Circuit for the first time permitted a habeasclaim related to force-feeding to proceed in Aamer v. Obama.

The Republican Congress hit then President Obama with another law, the National Defense Authorization Act (NDAA), effective January 2011, that placed a number of restrictions on the ability of the Executive to transfer detainees, which dramatically slowed the pace of transfers after this date.. These onerous procedural requirements were eased in 2014.  https://www.govtrack.us/congress/bills/110/hr5460/summary

On December 5, 2013, Mr. Ameziane and Bensayah Belkacem, a fellow Algerian national, were forcibly transferred to Algeria by the U.S. government, despite Mr. Ameziane’s fears of persecution in that country, which he had repeatedly conveyed to U.S. officials and the ICRC.  At the time, the Commission condemned the transfer, considering that it had been carried out “against Djamel Ameziane’s will” and in violation of international human rights law.

The U.S. said they were sure Algeria would abide by lawful procedures.  As it turned out, they did better than we did. The court put him on probation and released him;  two years later when he went to trial,  the two men were acquitted.  I worked in Algeria for the American Bar Association from 2008-2009 in what was called a “Rule of Law” project. I taught those lawyers how to use international law in their domestic cases to achieve human rights.  At the same time, my own country, the one paying me, was disregarding the Rule of Law and completely flouting many treaties and customary international law in order to violate persons international human rights.  What a fraud.

In spite of the acquittal, Ameziane had all the problems that ex-felons face in this country.  No documents, difficulty finding work, homelessness, discrimination and suspicion about his arrest.  He brought a civil suit to regain the $11,000 that the U.S. took from him but it was dismissed and his money has never been returned.  The Guantanamo Bay detention facility remains open and approximately 40 people are still there.

In Nuremberg, the defense of “I was just following orders” famously was rejected as an excuse for breaching Humanitarian and Human Rights Law, both of which still apply during conflict. As we should have learned in school, Americans were very involved and influential in setting up and carrying out that tribunal.  Now the tables are turned.  It’s the U.S. who is using the defense of  “I didn’t know it was unlawful, I was just following orders.”  This disgraceful behavior will forever stain the U.S. as the Nazi’s behavior has forever stained Germany.

In paragraph 370 the Commission says:  “Resorting to torture and cruel, inhuman and degrading treatment as a method of investigating crimes, in addition to concretely constituting a violation of individuals’ right to humane treatment and to a fair trial, is in the final analysis an assault on the rule of law itself and the very essence of any democratic society in which, by definition, the rights of all persons must be respected.”.

The essence of our democracy is under severe attack.  I left out the details of how Ameziane was treated because we need no more horror in our lives right now.  No civilized people act that way.  Whatever opinion you had of your country before reading this decision, you won’t have after.  That is one reason I cannot jump on the bandwagon of “thank you for your service” to every person in uniform.  Some of those people are the ones who did this, just like some of the returning soldiers from Viet Nam had committed unspeakable acts there.  Many of the police rioting in the last week came from the military.  They didn’t learn anything good there.

Remember that this story began under the reign of George W. Bush and Cheney.  They authorized torture.  Obama made some attempt at closing the prison but a Republican Congress blocked him though he did get rid of the “enhanced interrogation techniques.”  Bush/Cheney deserve no pass though the current occupant of 1600 Pennsylvania Avenue is worse.

So what can we do now?  We must repeal the Authorization for Use of Military Force Act. Congress recently passed a bill to do so in relation to Iran.  The president vetoed it.

https://www.whitehouse.gov/briefings-statements/presidential-veto-message-senate-s-j-res-68/Nevertheless, we have to do it again with a different president.

The Detainee Treatment Act of 2005 was modified in 2009 to ensure that waterboarding and other actions were declared illegal. The Military Commissions Act of 2009 (Pub L. 111-84, 123 Stat. 2190) also amended the Military Commissions Act of 2006. This act is entitled the “National Defense Authorization Act for Fiscal Year 2010.” Both versions of this Act are referred to as the “MCA.” We need to repeal both of these.

What the state has done and is doing in our name is an abomination, a violation of the law and of every moral principle one could conjure. I lived and worked abroad for 17 years and though I was often angry with my own government, I was proud to be an American.  No longer. We are now the laughing stock of the world and most recently a friend from New Zealand told me we have zero credibility on anything.  But worse is that we are feared and hated. Perhaps you have seen the bumper sticker:  The U.S. Making more enemies than we can kill. That seems to be all we do now.

This is not the country I want to live in.  This is not a country I can feel proud of.  To return to democracy and decency and the Rule of Law, we have to take action and take it now.  Every one of us can do something.  Donate money, volunteer for a campaign, write an editorial or letter to the editor, march in the street or in a car rally, phone voters, write postcards, sign up for and make sure everyone you know is signed up for PEVL, get mini-petitions signed, sign petitions, call or write to mayors and governors, your state legislators and your Congressional representatives. Wringing your hands and bemoaning the state of the country on Facebook may give us a feeling of solidarity, but that’s not enough. We have to take action.  Every one of us. Every day. Starting today.