Will Europe Take the Cleared Guantnamo Prisoners?

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As rumors continue
to fly regarding Barack Obama’s plans to close
the notorious “war on terror” prison at Guantánamo
Bay, one country in the European Union, Portugal, took the opportunity
offered last Wednesday by the 60th anniversary of the Universal
Declaration of Human Rights
– one of whose Articles declares,
“Everyone has the right to seek and to enjoy in other countries
asylum from persecution” – to announce that it was prepared
to accept prisoners cleared from Guantánamo who are unable
to be repatriated, and to urge other EU countries to do the same.

In a letter
to other EU leaders, Lus Amado, Portugal’s foreign minister,
declared,

The time has come for the European Union to step forward. As a matter
of principle and coherence, we should send a clear signal of our
willingness to help the U.S. government in that regard, namely through
the resettlement of detainees. As far as the Portuguese government
is concerned, we will be available to participate.

The Portuguese
offer addresses a problem that has plagued Guantánamo for
years, and that is, moreover, one of the major obstacles to Barack
Obama’s promise
to close the prison: what to do with the prisoners who have been
cleared for release from Guantánamo after multiple military
reviews but who cannot be freed because of international treaties
preventing the return of foreign nationals to countries where they
face the risk of torture?

These men,
numbering at least 60 of the remaining 255 prisoners, are from such
as Algeria, China, Libya, Tunisia, and Uzbekistan. They are no longer
regarded as a threat to the United States or its allies, but they
remain in Guantánamo because, until now, only one country
has stepped forward to give new homes to cleared prisoners. Albania
accepted eight cleared prisoners – five
Uighurs
(Muslims from China’s oppressed Xinjiang province)
in May 2006, and three
others
(an Algerian teacher, an Egyptian cleric and a refugee
from the former Soviet Union) in December 2006.

A week after
Barack Obama’s election victory, a number of human rights groups
– including Amnesty International and Human Rights Watch –
launched
a campaign
in Berlin aimed at persuading European governments
to accept cleared prisoners, but until the Portuguese government
spoke out last week, the response had been lukewarm.

On November
13, Amnesty International announced
that Switzerland had refused asylum applications by three cleared
prisoners from Algeria, China, and Libya,
and on December 12 the Irish
Times
confirmed that Justice Minister Dermot Ahern had stated
that the Irish government was “not contemplating the resettlement
of any Guantánamo inmates,” apparently dashing the hopes
of Uzbek refugee Oybek Jamoldinivich Jabbarov, who was sold to U.S.
forces in Afghanistan seven years ago, that he might finally be
released from Guantánamo.

In addition,
the legal-action charity Reprieve,
whose lawyers represent around 30 Guantánamo prisoners, has
so far failed to interest the British government in accepting the
return of Algerian national Ahmed
Belbacha
, even though he lived in the UK for two years and only
left Algeria because he was threatened by Islamist militants, and
has also had no success in persuading the French government to accept
Nabil
Hadjarab
, a former resident with family in France, and in resettling
six
Tunisians
and an Egyptian
who had all been residents in Italy. One other country, Sweden,
which was widely perceived as sympathetic to refugees, dashed all
hopes that it would lead the way in repatriating Guantánamo
prisoners in June this year, when it refused asylum to Adel
Abdul Hakim
, one of the five Uighurs freed in Albania. Hakim
had applied for asylum in November 2007, after securing a visa to
visit his sister, who is part of a Uighur community in Stockholm.

One of the
major obstacles to European support, of course, has been the Bush
administration’s unwillingness to accept responsibility for
its own mistakes by working to secure the release of cleared prisoners
into the United States. For several years, State Department officials
have been touring the world, attempting to persuade third countries
to accept some of these men, but without success. Their failure
is partly because the administration refuses to concede that any
prisoners seized in the “war on terror” are innocent men
captured by mistake – choosing instead to refer to them as
“No Longer Enemy Combatants” or “enemy combatants”
who have been “approved for transfer” – but it is
also because the administration has taken a hectoring tone with
other countries, chastising them for failing to help, rather than
addressing them in a conciliatory manner.

Unfortunately,
comments made since the Portuguese announcement by the State Department’s
legal adviser, John Bellinger, have done nothing to suggest that
the prevailing attitude has changed. Speaking to Reuters,
Bellinger called Luis Amado’s letter “extraordinarily
significant.” He revealed, “It is the first time that
any country except Albania has privately or publicly stated that
they are prepared to resettle Guantánamo detainees who are
not their own nationals.” This was not strictly accurate, as
Germany,
Spain,
and the UK
have also accepted the return of legal residents, but what made
Bellinger’s comments particularly troubling was when he added,
“It really is the first crack in the ice of what has been European
opposition to helping with Guantánamo in any way. For five
or six years there has been consistent criticism but no constructive
offers to help … Europe need to stop simply calling for its closure
but to step up and actually help with its closure.”

As a result
of these unhelpful comments, it seems probable that the plight of
Guantánamo’s refugees in limbo is unlikely to change
until Barack Obama takes over from George W. Bush in January, when
he will, hopefully, be able to muzzle State Department criticism
of U.S. allies and secure cooperation as part of his honeymoon period.
However, good will alone may not be enough to persuade other countries
to help the new president to close Guantánamo. Speaking to
the Washington
Post
, Jennifer Daskal, senior counterterrorism counsel for
Human Rights Watch, suggested that the Portuguese announcement might
be “the start of a trend,” but added that she believed
European cooperation would hinge on a willingness by the United
States to take cleared prisoners as well. “The new Obama administration,”
she said, “is going to have to jump-start this by accepting
some of the detainees.”

In particular,
President Obama will need to address the plight of the 17 remaining
Uighurs in Guantánamo. With the exception of five
Bosnian Algerians
, whose release was ordered last month by federal
district court Judge Richard Leon, after he was allowed to review
the government’s evidence against the men, and ruled that the
administration had failed to establish a case for holding them,
the Uighurs are the only prisoners at Guantánamo who have
been cleared of being “enemy combatants.”

In June, when
an appeals court was finally allowed to review the case against
one of the men, Huzaifa
Parhat
, the judges demolished the government’s allegations,
ruling that Parhat’s status as an “enemy combatant”
was invalid, and comparing the government’s evidence to a nonsense
poem by Lewis Carroll, the author of Alice’s Adventures
in Wonderland. In the months that followed, the government abandoned
trying to prove that any of the Uighurs were “enemy combatants,”
and when their case reached the Washington, D.C., district court
in October, Judge Ricardo Urbina ruled
that their continued detention was unconstitutional, and ordered
their release into the United States, as no other country had been
found that would accept them.

Unfortunately
for the Uighurs, the government, which was still drunk on the dreams
of unfettered executive power that had sustained it for over seven
years, refused to accept that the Supreme Court’s momentous
ruling
in June, which granted the Guantánamo prisoners
“the privilege of habeas corpus to challenge the legality of
their detention,” also held that “a court’s power
under the writ must include ‘authority to … issue … an order
directing the prisoner’s release.’”

Effectively
arguing that the whims of the executive trumped the ruling of a
judge, the government also attempted to resuscitate claims that
the Uighurs were involved in militancy, even though it had been
established without a doubt that they had only one enemy –
the Chinese government – and even though the administration
itself had abandoned any claims of militancy when it accepted that
none of the men were “enemy combatants.”

The appeals
court judges have yet to deliver a final ruling on the Uighurs,
but in the meantime it became apparent last week, in comments that
John Bellinger made to the BBC,
that he supports the government’s unprincipled and unjustifiable
opinions, when he stated that the Uighurs were “properly detained,”
because, although they “wanted to fight the Chinese,”
they “were in training camps.”

Bellinger’s
words not only suggest, incredibly, that the administration believes
it is justified in holding anyone as an “enemy combatant”
who has attended any kind of military training camp (even those
that have no connection whatsoever with al-Qaeda or the Taliban);
they also cut off any hope that another country will be prepared
to accept the Uighurs. For Barack Obama to succeed in closing Guantánamo,
he will not only need to repudiate opinions like these, but will
also need to find the courage to follow Judge Urbina’s ruling
that holding the Uighurs is unconstitutional, and to secure their
release to the communities in Washington, D.C., and Tallahassee,
Florida, which have already made detailed
plans
to welcome them. Anything less, and his mission to close
Guantánamo and regain America’s moral standing may well
be doomed.

December
17, 2008

Andy
Worthington is the author of
The Guantánamo Files: The Stories of the 774 Detainees in
America’s Illegal Prison
(published by Pluto Press).
Visit his website.

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