The story of Djamel Ameziane, an Algerian national who was detained in Pakistan and transferred to US custody and to Guantanamo, Cuba in 2002. He alleges torture and other cruel treatment throughout his detention although never charged with a crime, there being no evidence.
The Organization of American States (OAS) was founded in 1948 for the “settlement of disagreements and disputes that may hereafter arise” between its members. All 35 independent states of the Americas have ratified the OAS Charter and are members, including the United States.
Following strict protocol and notification of parties, the IACHR found that the petition fell within its purview and undertook an investigation in 2012. This resulted in a report which was published on April 22, 2020 upon which this article is based.
The Subject of the Investigation
Mr. Ameziane is an Algerian national who was detained by local authorities in Pakistan in 2001 and transferred to US custody, allegedly for bounty. He was initially held at Kandahar Air Base, Afghanistan before being transferred to Guantanamo Naval Base, Cuba in 2002. He alleges torture and other cruel treatment throughout his detention. After eleven years of arbitrary detention, he was forcibly repatriated to Algeria in 2013 despite credible threats to his well-being in that country. The United States never offered any evidence linking him to hostilities or terrorism, nor was he ever charged with a crime. He was simply in the wrong place at the wrong time.
Mr. Ameziane described his inhumane treatment for the inquiry. His allegations of waterboarding, beatings, death threats, sleep deprivation, and solitary confinement contained specific details lending credibility to his account. They were also consistent with a report of the International Committee of the Red Cross, leaked in 2004, that found the detention regime at Guantanamo to be “an intentional system of cruel, unusual, and degrading treatment and a form of torture.”
The United States did not controvert the testimony of Mr. Ameziane, or otherwise address his allegations of inhumane treatment directly. Instead, it offered the Commission this demonstrably untrue platitude; “[a]ll US military detention operations conducted in connection with armed conflict, including at Guantanamo, are carried out in accordance with international humanitarian law, including Common Article 3 of the Geneva Conventions, and all other applicable international and domestic laws.”
The Commission considered a series of legal memoranda issued by the Office of Legal Counsel in 2002. Commonly known as the “torture memos, they were written by John Yoo and Jay Bybee and authorized the very techniques applied to Mr. Ameziane while asserting that the President is not bound by customary international law, the Geneva Conventions, or the federal War Crimes Act in decisions concerning detention conditions of al Qaeda and Taliban prisoners.
On January 22, 2009, two days after President Obama’s inauguration, an executive order titled Ensuring Lawful Interrogations was issued. It stated that individuals detained in any armed conflict “shall in all circumstances be treated humanely and shall not be subjected to violence to life and person”. It further established Common Article 3 of the Geneva Conventions as the minimum baseline in this regard. The Commission properly interpreted this development as a reversal of the position held by the previous administration; that persons detained in the global war on terror were not, as claimed, afforded the Geneva Convention protections.
The report also found that Mr. Ameziane’s right to due process was violated. For six years beginning in January 2002, he had no meaningful avenue to challenge the legality of his detention.
While lower courts were generally deferential to the unique constructs of the Bush administration’s war on terror, including off-shore sequestration of detainees, the Supreme Court ruled in 2004 (Rasul v. Bush) that, contrary to executive policy, Guantanamo prisoners did have a right to file writs of habeas corpus and challenge their detention in regular courts.
In response, the Defense Department created Combatant Status Review Tribunals (CSRT’s). Intended as an alternative to habeas corpus, these tribunals were entirely secret. Their location was secret, the identity of the presiding officers was secret, and secret government evidence was presumed to be reliable and valid, including hearsay provided by anonymous sources. Detainees were denied counsel and informed before the hearing that they had already been found to be an enemy combatant at multiple levels of review.
Mr. Ameziane refused to participate because he believed the hearings “would not provide due process and would be used to justify his indefinite detention”.
Congress joined in the effort to circumvent the Rasul decision by passing the Detainee Treatment Act of 2005. It granted the government-friendly D.C. Circuit Court of Appeals exclusive jurisdiction to review the kangaroo CSRT decisions, as if that were a substitute for habeas corpus and direct access to the courts. It also granted civil and criminal immunity to government personnel who abused and tortured detainees pursuant to enhanced interrogation directives, a curious provision in a law ostensibly intended to protect detainees.
The Supreme Court ruled in June 2006 (Hamdan v. Rumsfeld) that the military commissions set up by the Bush administration were unconstitutional because they violated both the Geneva Conventions and the Uniform Code of Military Justice. The majority found the military commissions were not “regularly constituted courts” as required, and protections afforded to prisoners were deficient, specifically citing the permitted use of statements obtained through torture.
Following the decision in Hamdan, Congress attempted another end-run around the court by passing the Military Commissions Act. It was signed into law on October 17, 2006, and added statutory authority to the military commissions, but it failed to adequately correct their procedural flaws. It further stripped the courts of habeas jurisdiction in all pending and future cases.
Boumediene v. Bush consolidated a number of these stayed habeas petitions and challenged all of the attempts to subvert the 2004 ruling in Rasul v. Bush. On July 12, 2008, the Supreme Court ruled in favor of the detainees holding again that they have a right to habeas protection and that the alternatives concocted by the executive and legislative branches did not pass constitutional muster.
The Remedy and Its Denial
Guantanamo Bay, Cuba. Photo credit: Algerie360.com.
The injury here to Djamel Ameziane is apparent. For six years, justice was denied while he endured severe physical and psychological mistreatment. The government added insult to that injury by clearing him for transfer (October 2008), and then successfully argued in court that his habeas petition was therefore moot.
But that did not mean he was a free man. The United States did not make public his clearance, and it prohibited him from doing so. The rationale was that negotiations for the transfer of other cleared detainees would be harmed if individual detainees simultaneously pursued their own resettlement. He would languish in the American gulag for another five years.
The IACHR addressed the notion of transfer rather than release:
Once a detainee has been cleared for transfer, the U.S. authorities have no basis to continue treating him as a suspected terrorist. Therefore, the cleared detainees should be housed separately from the rest of the prisoners, should have ample access to counsel and family members, and should not be subjected to the regime applicable to the rest of the prison population. Detainees cleared for transfer should be treated as persons who have never been charged-which is what they are-whom the authorities have no legitimate interest in detaining. The only reason they are still at Guantanamo is that they are waiting for a third country to receive them.
But there would be no effort to make amends for the wrongful detention and mistreatment of Mr. Ameziane. Instead, the United States worked purposefully to send him to the country he feared most: Algeria. He knew firsthand of the discrimination observant Muslims experience in his home country. He was aware of the stigma his status as a former Guantanamo prisoner would carry. His brother believed he “would be shot” if he returned. And, his interrogators had threatened to send him there to be tortured or killed if he did not cooperate.
The forcible return of a person to a country where they are likely to be persecuted is known as refoulement. The practice is prohibited under international law and is a violation of human rights.
The IACHR opposed Mr. Ameziane’s transfer to Algeria, and condemned it when it came to pass on December 5, 2013. It was aware of Algeria’s poor human rights record, and that another Guantanamo transferee, Abdul Aziz Naji, had been sentenced to three years in prison following a one-hour summary trial for terrorism. It was also aware that offers of resettlement were pending from other countries including Canada and Luxembourg.
Mr. Ameziane was taken to Algeria on a military transport plane. His hands were shackled to his waist and his feet were chained to the floor. He was handled roughly and interrogated upon arrival, then thrown in jail where conditions were crowded and unsanitary. He was interrogated several more times in jail, and after five days he was released on probation.
More than two years later, in May 2016, Mr. Ameziane was put on trial in Algeria. He faced terrorism charges and the prosecutor sought ten years imprisonment. While it was a harrowing experience, he was acquitted in a one-day trial.
The United States was less than cooperative with the IACHR in its investigation into Mr. Ameziane’s refoulement. Rather than provide any specific information regarding an individualized evaluation that is required prior to transfer, it simply produced its non-refoulement policy and offered assurances that it had been followed.
The report also concluded that Mr. Ameziane’s right to property had been violated and recommended the simple remedy that it be returned. It is here that the United States most reveals its penchant for petulance and intransigence.
At the time of his initial arrest, the equivalent of approximately $11,500 was seized from Mr. Ameziane. It is US government policy to retain all currency confiscated from Guantanamo detainees because it “remains possible that former detainees will use their returned money to help finance terrorist activities”. Apparently, this blanket policy applies even to those wrongfully detained who never had ties to terrorism in the first place.
When Mr. Ameziane’s lawyer brought a civil suit in US court to get his money back, the suit was dismissed. The court held that “[n]ot every violation of a right yields a remedy, even when that right is constitutional”.
In all, the IACHR report found the United States responsible for thirteen violations of the American Declaration of the Rights and Duties of Man, commonly known as the American Declaration. Its recommendations held remedies for both Mr. Ameziane and the 40 detainees remaining at Guantanamo.
After failing to implement any of the Report’s recommendations (the United States called them “non-binding”), the IACHR issued a Final Merits Report to which the United States has been entirely unresponsive.
A Pattern of Intransigence
One cannot help but contrast the US attitude toward this IACHR investigation with that of the OAS report alleging fraud in last year’s election in Bolivia. Even though the election report has since been discredited, the United States was quick to trumpet its conclusion. The double standard is glaring. Washington embraces the findings of the OAS only when they serve its hegemonic interests, and no factual basis is required if the wrongdoing is attributed to an official adversary such as Evo Morales.
Mike Pompeo. Photo credit: USA Today
One must also bear in mind the recent US threats issued to the International Criminal Court for investigating possible war crimes committed by the United States in Afghanistan. Secretary of State Mike Pompeo called the investigation “a breathtaking action by an unaccountable political institution masquerading as a legal body”, and financial and travel sanctions have been leveled against ICC officials, including Chief Prosecutor Fatou Bensouda. However, when the target of an ICC action is an official US adversary, such as Libyan leader Muammar Gaddafi or Congolese rebel leader Bosco Ntaganda, the United States is entirely supportive.
The plight of Djamel Ameziane is a real-world example of the self-serving approach to human rights practiced by the United States. Human rights law is not inviolable, but rather a bludgeon to be used against US adversaries while transgressions by the United States and its allies are given a pass. State Department veteran Brian Hook made this clear to his boss, novice Secretary of State Rex Tillerson, in a memo dated May 17, 2017.
The rule of law suffers when the self-proclaimed leader of the free world holds itself above it. If the law does not apply to the most powerful, its application to weaker nations is hypocritical. For the United States, whose primacy is slipping, it may ultimately prove self-injurious to tear down international institutions dedicated to settling disputes, serving justice, and upholding the law.
MikeMadden is a veteran of the United States Air Force. His service to country began when he joined Veterans For Peace.