British Government's Request for Return of Five Residents from Guantánamo Rocks Dubious Deals with Dictators

Having secured the return of nine British nationals in 2004 and 2005, the Blair government then pointedly refused to act on behalf of the British residents.
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In a resounding break with the policies of Tony Blair, the new British government, led by Prime Minister Gordon Brown, has announced that it has requested the return of five British residents in Guantánamo: Shaker Aamer, Jamil El-Banna, Omar Deghayes, Binyam Mohammed al-Habashi and Abdulnour Sameur. According to a Press Association report, "The Foreign Secretary and Home Secretary are seeking the release of the men who were legally resident in the UK before their detention," and Foreign Secretary David Miliband "has written to US Secretary of State Condoleezza Rice to formally make the request."

Declaring that it had "reviewed its approach to the group in the light of its aim to see the closure of the center and recent steps taken by the US government to reduce the numbers of detainees held there," the Foreign Office announced, in a statement, "The Foreign Secretary and Home Secretary have reviewed the Government's approach to this group of individuals in light of these ongoing developments, our long-held policy aim of securing the closure of Guantánamo Bay, and the need to maintain national security. They have decided to request the release and return of the five detainees who have links to the UK as former residents, having been granted refugee status, indefinite leave or exceptional leave to remain prior to their detention."

Although the Foreign Office "cautioned that the release and return of the men may take some time," this is extraordinary news, and reflects a genuine break with the militant refusal of Tony Blair's administration to fulfill its obligations to act on behalf of the British residents in Guantánamo. As Jamil El-Banna's solicitor, Irene Nembhard, noted in June, the rights of refugees recognized by the UK are not negotiable, and all have "a legal entitlement to return to the UK."

The struggle for the rights of the British residents in Guantánamo has a long and turbulent history. Having secured the return of nine British nationals in 2004 and 2005, the Blair government then pointedly refused to act on behalf of the British residents, arguing that it had no obligation to do so. This was in spite of evidence - which emerged through grass-roots campaigns and, eventually, through declassified reports from lawyers representing the detainees - that they were innocent men, who had suffered egregious human rights abuses in American custody, and who had either been sold to the Americans for bounty payments, or, more shockingly, had been betrayed to the Americans on the basis of patently false intelligence material supplied by the British intelligence services.

Briefly, the men's stories are as follows:

38-year old Shaker Aamer, born in Saudi Arabia, had been a British resident since 1996, and is married with five children, the youngest of whom was born after his capture. In 2001, he traveled with his family from his home in south London to Afghanistan, where he shared a house in Kabul with released British national Moazzam Begg and his family, and worked to establish a girls' school. After 9/11 and the US-led invasion, he arranged for his family to flee Afghanistan, but was captured in Jalalabad and sold to the Northern Alliance, who in turn sold him to the Americans. Held in the notorious, CIA-run "Dark Prison" near Kabul, he was eventually transferred to Guantánamo, where his charisma, his mastery of English and his relentless campaigning on behalf of his fellow detainees led the US authorities to conclude, erroneously, that he was a major player in al-Qaeda. Since leading a short-lived "Prisoners' Council" in the summer of 2005, which was first encouraged and then suppressed by the authorities, he has been held in solitary confinement, and has been on a hunger strike since December 2006.

37-year old Omar Deghayes, born in Libya, arrived in the UK with his family as a teenager in 1986, after his father, a prominent trade union activist, had been tortured and murdered by Colonel Gaddafi. A law student at Wolverhampton University, he took a break from his studies in 2000 to travel to Afghanistan, where he married an Afghan woman and had a child, but was captured after crossing into Pakistan after the US-led invasion began. Blinded in one eye during an assault by armed guards in Guantánamo, he has also been threatened by Libyan intelligence agents (who flew to Guantánamo on a CIA-chartered plane), and the justification for his continued imprisonment relies on claims that he was identified on a videotape as a Chechen militant, even though his lawyers in the UK, with the help of journalists from the BBC's Newsnight, proved in 2005 that it was a case of mistaken identity.

45-year old Jamil El-Banna, born in Jordan, arrived in the UK in 1994, and was granted asylum in 2000. Like Shaker Aamer, he is married with five children, and his youngest child was born after his capture. With Bisher al-Rawi, a British resident from Iraq, El-Banna was seized in November 2002 by US agents in the Gambia, where the two men had traveled to establish a mobile peanut-processing plant with al-Rawi's brother Wahab. Shockingly, they were captured after the British intelligence services provided false information to their American counterparts, claiming that both men were involved in terrorism (which they were not), neglecting to mention that al-Rawi was working for MI5 as an informer, keeping tabs on the radical cleric Abu Qatada, and ignoring the fact that both men had been informed, before their departure, that they were not under suspicion. "Rendered" to Afghanistan, and held, like Shaker Aamer, in the "Dark Prison," they were transferred to Guantánamo in March 2003.

29-year old Binyam Mohammed al-Habashi, a refugee from Ethiopia who arrived in the UK with his father in 1995, was a janitor at a mosque in west London. Captured in Pakistan in April 2002, he was then handed over to the US authorities, who, in one of the most devastatingly inept failures of intelligence in the whole of the "War on Terror," decided that he was a major al-Qaeda terrorist, and "rendered" him first to Morocco, where he was tortured for 18 months, and repeatedly had his penis cut by razor blades, and then to their own "Dark Prison" in Afghanistan. Scheduled to face a Military Commission, his case was dropped in June 2006 after the Supreme Court ruled that the Commissions were illegal, and has not been reinstated.

34-year old Abdulnour Sameur, an Algerian refugee, was granted asylum in April 2000, after deserting from the Algerian army, because, he said, he was "made to go in the streets and shoot innocent people." Accused of having advance knowledge of 9/11, he explained in Guantánamo that he made this up in the US prison in Kandahar airbase, when the interrogators threatened to withhold medical treatment. "I told them this in Kandahar during the interrogations because the interrogators were dogs," he said. "I had an injury in my leg. I had metal sticking out of my leg and they would not clean the wound; they would not give me treatment ... I just told them anything, whatever they wanted to hear because I wanted them to treat my leg. I saw other people whose legs had to be cut off. I did not want my leg to be cut off... If you were in my place, if you were in Kandahar you would have done the same thing. Just like a small child."

In tracing the history of the British government's refusal to help its residents in Guantánamo, and the shifting patterns of its relationship with the US authorities, the first major insight occurred in October 2006, when, in an article in the Guardian, Ian Cobain and Vikram Dodd revealed that, after months of secret negotiations, the US administration had offered to return "nearly all" the British residents in the summer of 2006, but the British government had refused the offer. Cobain and Dodd pointed out that senior officials not only maintained that the residents had "no legal right to return," but also dismissed the US authorities' demands that the prisoners be "kept under 24-hour surveillance if set free" as "unnecessary and unworkable."

The documents on which the Guardian article was based were witness statements from David Richmond, director general of defence and intelligence at the Foreign Office, and William Nye, director of counter-terrorism and intelligence at the Home Office. Cobain and Dodd reported that, on June 27, 2006, after a meeting between UK officials and representatives of the US State Department, the Department of Defense and the National Security Council, David Richmond wrote, "The US administration would only be willing to engage with the UK government if it sought the release and return of all the detainees who had formally resided in the UK (i.e. regardless of the quality of their links with the UK), rather than just a subset of the detainees falling in that category." William Nye added, "The US administration envisages measures such that the returnees cannot legally leave the UK, engage with known extremists or engage in support, promote, plan or advocate extremist or violent activity, and further have the effect of ensuring that the British authorities would be certain to know immediately of any attempt to engage in any such activity."

Nye also declared, "I am not satisfied it would be proportionate to impose ... the kind of obligations which might be necessary to satisfy the US administration." He explained that the measures demanded by the Americans would have to be enforced by MI5 and would divert vital resources away from countering more dangerous terrorist suspects. "The use of such resources ... could not be justified and would damage the protection of the UK's national security," he wrote, adding, crucially, that the Guantánamo prisoners "do not pose a sufficient threat to justify the devotion of the high level of resources" the US would require.

Refusing the American offer, the British officials explained that they were only interested in the return of one resident, Bisher al-Rawi. Clinging to their story that he was "now known to have helped MI5 keep watch on Abu Qatada" - and refusing to acknowledge, as documents released by his lawyers in March 2006 revealed, that both he and Jamil El-Banna had actually been betrayed to the Americans by British intelligence - they remained true to their word, and al-Rawi returned safely to the UK on 30 March 2007, to be reunited with his family.

In the meantime, however, the status of three of the British residents had changed since the summer of 2006, when Washington's "all-or-nothing" offer was turned down. In February, lawyers for Ahmed Errachidi, a Moroccan who had been working as a chef in London for 16 years, and Ahmed Belbacha, an Algerian ex-footballer who had been working at a hotel in the seaside resort of Bournemouth, were informed that they had been cleared for release from Guantánamo, "after diplomatic arrangements for their departure had been made," because a review board had determined that they no longer represented a threat to the US or its allies and no longer had any "intelligence value." Callously, however, the British government refused to accept the men back, maintaining that, "Because they are not British citizens, we're not providing any consular or diplomatic assistance." On May 25, lawyers for Jamil El-Banna were informed that he too had been cleared for release. As with Errachidi and Belbacha, however, the British government refused to take him back.

It was at this point that the plight of the British residents in Guantánamo coincided with the stories of those held in Britain's own "mini-Guantánamo": the 17 foreign prisoners - some arrested as early as November 2001 - who were held without charge or trial in a maximum security prison in Belmarsh, in south London, until December 2004, when the Law Lords ruled that their imprisonment was in breach of human rights law. While this immediately prompted a constitutional crisis, and right-wing commentators ranted about the need to ditch European human rights legislation, more astute observers revealed how chaotic and arbitrary the whole process had been. They noted that six of the 17 - who included Abu Qatada and Abu Rideh, a Palestinian refugee, but who were otherwise anonymous and dehumanized, known only by initials, such as Detainee "A" - had already been released.

In April 2004, one of these men, a Libyan known only as "D," who was allowed to stay with his wife in Britain after judges ruled that there was no evidence that he was a terrorist, explained to the Guardian that most of the Belmarsh prisoners had become deranged and suicidal. He was speaking on the same day that another prisoner, a disabled Algerian known as "G," was returned to his home, under strict bail conditions, because he was "too mentally ill to stay in prison." Two others took advantage of a provision that allowed them to leave Britain. One went to Morocco, and the other to France, although the Home Office refused to explain why, if they were such a threat, neither was arrested after leaving the UK.

In response to the Law Lords' ruling, the government refused to free the eleven men who remained in Belmarsh at the start of 2005, instead concocting a series of draconian control orders, which involved releasing them from Belmarsh but keeping them under what was essentially house arrest, with conditions that included being electronically tagged at all times, being forced to stay at home from 7 pm to 7 am, and having their passports taken away and their phone lines cut. Those who were forced to live under the orders soon complained that they were routinely woken in the middle of the night by unannounced visits from police and the security services, that they had inadequate access to mental healthcare, and that the lives of their families were ruined.

Although the control orders were widely condemned, they have, in the last two years, been extended to another 21 prisoners, including at least seven British citizens, even though six were nullified in the High Court in June 2006, when a judge ruled that they were incompatible with laws established by the European Court of Human Rights, and even though they have also proved almost impossible to enforce; at least seven suspects have absconded since August 2006, providing acres of scare-mongering fodder for the tabloid newspapers. What's most disturbing about the control orders, however, is not that they were designed to imprison men who had never been charged in coffin-like isolation in their own homes, but that they actually had a darker purpose, which dove-tailed horrendously with the plight of dozens of prisoners in Guantánamo - including the British residents - and was clearly conceived in conjunction with the US administration.

This darker purpose, whereby the control orders were designed to override international treaties preventing the return of prisoners to countries where they face torture or even death - laws that the British government, like that of the US, regards as failing to take into account the unprecedented terrors of the post-9/11 world - was implemented by the British government in two ways. The first was to torment some control order suspects to such an extent that they would volunteer to return to their countries of origin, even though they feared appalling treatment on their return, but the second was even more direct. In August 2005, the government rearrested Abu Qatada and eight other control order suspects (mostly Algerians), announcing that they were to be repatriated to their home countries. The figleaf for this latest abrogation from international law was a series of "memoranda of understanding," signed with countries including Jordan and Libya, which apparently guaranteed that, "If arrested, detained or imprisoned following his return, a returned person will be afforded adequate accommodation, nourishment and medical treatment, and will be treated in a humane and proper manner, in accordance with internationally accepted standards." What the memoranda did not make clear, however, was whether these "standards" would be those of the pre-9/11 world, or those that the Americans and the British had debased in the years since, in Guantánamo, Afghanistan, Iraq and Belmarsh. In any case, as human rights lawyers immediately contended, agreements with dictators were not worth the paper on which they were printed.

Where this new policy coincided with the wishes of the Americans was in Guantánamo. Since 2004, when the US authorities had first cleared some prisoners for release, but had concluded that they could not be sent back to their countries of origin because of fears that they would be tortured or killed, they had struggled to find a solution to this problem of their own making. At first this was a relatively principled process. Although the Americans refused to accept any of the cleared (i.e. innocent) prisoners as their own responsibility, allowing them to settle in the US, and all their major allies also refused to accept them, one country - Albania - was bribed sufficiently to accept five Chinese Uyghurs (persecuted Muslims from the Xinxiang province) in May 2006, and three other innocent but problematical men - an Algerian doctor, an Egyptian cleric and an ethnic Uzbek from the former Soviet Union - followed in November.

Unfortunately for the Americans, however, they discovered that they were holding dozens more innocent men in Guantánamo who had legitimate fears about being returned to their countries of birth, and, whether through a reticence on the part of Albania, or a desire - as in the UK - to smash international safeguards preventing the return of prisoners to such allies in the "War on Terror" as Libya's Colonel Gaddafi (a formerly implacable enemy who was rehabilitated in 2004), Tunisia's dictator Zine El Abidine Ben Ali, and the regimes in Algeria and Jordan - all of whom have notorious secret services and torture prisons - they decided that they, like the British, would try to break this deadlock through phony "memoranda of understanding."

In Guantánamo, these decisions impacted directly on Ahmed Errachidi, Ahmed Belbacha and Jamil El-Banna. With the British government refusing to accept them back, the Americans decided to return them to their countries of birth instead. A month after Bisher al-Rawi returned to the UK, Ahmed Errachidi was stealthily returned to Morocco, where he was arrested on terrorism charges, which were only dropped after representations by Moroccan lawyers acting on information provided by his lawyers in the UK. Belbacha and El-Banna, however, remained in Guantánamo, with El-Banna fearing that he would be returned to Jordan, which he had fled 13 years before because of religious persecution, and Belbacha fearing that he would be returned to Algeria, which he had fled to avoid reprisals from Islamist militants, while he was working for a government-run oil company, and where, according to his lawyers, the Algerian intelligence services stated that they could not ensure that he would be safe from their own personnel.

Sarah Teather, the feisty Liberal Democrat MP who is El-Banna's representative in parliament, and who has campaigned tirelessly for his release, delivered a damning verdict on the government's position, saying, "Jamil's wife, Sabah, is very happy that he has been cleared for release, but at the same time exceedingly worried that he will be sent back to Jordan ... This country gave Jamil refugee status because we accepted that he had been tortured in Jordan and that his life would be in danger were he to be returned there. What kind of process of moral decrepitude has gripped this Government that it now sees fit to risk his life by sending him to Jordan, rather than returning him to his five British children?"

Sarah Teather's fears were well-grounded. In June, lawyers at the Center for Constitutional Rights in New York - and Edward Markey, a member of the House of Representatives - sought to prevent the US authorities from returning a cleared Libyan prisoner in Guantánamo, Abdul Rauf al-Qassim, to his home country, because he was afraid that he would be imprisoned "for no reason" (he is still in Guantánamo at the time of writing), and his case is clearly related to attempts by the British government to do the same with two Libyans who were held without charge or trial in the UK. In the case of these men, a glimmer of hope was provided on April 27, when the members of the UK's Special Immigration Appeals Commission (SIAC) delivered a stern rebuke to the callous new policies of the US and UK governments, revealing their contempt for the supposed validity of the "memorandum of understanding" with Libya by ruling that the two men could not be returned to their home country because they were at risk of torture. And just last week, in a move that may have impacted directly on the new administration's decision to act on behalf of the remaining British residents, appeal court judges in London delivered another blow to the government, ruling that three Algerians could not be returned to their home country because they too were at risk of torture.

Elsewhere, however, fears that the "memoranda of understanding" were irredeemably flawed, and that prisoners would face horrendous ill-treatment on their return to their home countries, were brutally confirmed in the case of Abdullah bin Omar, a Tunisian prisoner who, like Abdul Rauf al-Qassim, was cleared for release from Guantánamo but was unwilling to return home. Bin Omar, who had been living in Pakistan for 13 years, was forcibly returned to his home country on June 17, despite fears that, because he had been sentenced in absentia to 23 years in prison for belonging to a moderate Islamist political party, he would be tortured on his return. What has come to light since has confirmed what Zachary Katznelson, one of his lawyers, noted at the time of his transfer; that bin Omar was "a guinea pig in a potentially deadly diplomatic experiment." Another of his lawyers, Clive Stafford Smith, recently explained that the US authorities had prevented him from meeting bin Omar before he was repatriated, to warn him of the sentence he had received in absentia, and reported that Tunisian human rights observers had revealed that, on his return, bin Omar was immediately imprisoned and tortured by the Tunisian authorities, who told him that if he did not agree to make false confessions about non-existent crimes, his wife and daughters would be raped.

The case of Abdullah bin Omar reveals, tragically, that the new arrangements negotiated by the British and the Americans are neither morally defensible (as his torture confirms) nor legally sound (as revealed by the verdicts of SIAC and the UK appeals court), and confirms that the fate of two groups of men - those who are completely innocent of any wrong-doing, who have already been imprisoned in horrendous conditions in Afghanistan and Guantánamo, and others who have been imprisoned in the UK without ever being told the charges against them - should not be the subject of such an unprincipled high-stakes lottery; one in which, literally, the outcome could either be life or death.

With the British government belatedly acknowledging its responsibilities to the British residents in Guantánamo, it seems that Jamil El-Banna will finally be liberated from the threat to send him to Jordan, that Omar Deghayes and Abdelnour Sameur will not have to face the prospect of being returned to Libya or Algeria, and that the long and brutal persecution of Binyam al-Habashi and Shaker Aamer is coming to an end. I congratulate the government on rediscovering its principles, but still fear for the many other cleared detainees in Guantánamo - including Abdul Rauf al-Qassim and Ahmed Belbacha, whose lawyers are currently pursuing his case with the US Supreme Court - and the control order suspects in the UK, who still have valid concerns about being returned to torture in their home countries.

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