August 1, 2009

Emptying Guantánamo camps, one deal at a time

On May 20, the premier of Bermuda was paying his respects at the White House when he offered a lifeline to the Obama administration's struggle to find countries for some of Guantánamo's most stigmatized detainees.

On May 20, the premier of Bermuda was paying his respects at the White House when he offered a lifeline to the Obama administration's struggle to find countries for some of Guantánamo's most stigmatized detainees.

``I wonder if Bermuda can help,'' Premier Ewart Brown offered.

Three weeks later, four former prisoners were smiling, posing for photographers at a Bermuda beach -- a freeze-frame moment capping rare collaboration between a U.S. ally, attorneys and an American administration determined to close the Pentagon's prison camps in Cuba by Jan. 22.

Bermuda's hospitality illustrates how much the administration is relying on outsiders to make good on President Barack Obama's mandate to empty the prison camps at Guantánamo Bay.

And, how the U.S. attorneys who fought the Bush administration tooth-and-nail on its detention policies are now emerging as key partners in the effort to craft safe solutions for some of the men.

A case in point came this past week from the federal courts.

Long before Judge Ellen Segal Huvelle ordered the U.S. government to free a young Afghan named Mohammed Jawad, his military lawyers arranged with UNICEF and the Afghan Human Rights Commission to get him education and support, once back home with his mother.

Defense lawyers argue he was 12, not 17, at his capture. They wanted to show an Obama task force that ``we had everything in place to ensure a smooth transition to civilian life,'' said Air Force Reserve Maj. David Frakt.

The post-release program was put together by Frakt, a college professor doing reserve duty, a Marine lawyer who traveled to Afghanistan and a Navy reserves lawyer, a lieutenant commander.

A total of 13 detainees have left Guantánamo since Obama took office. Six were resettled in Bermuda, Britain and France, not their native countries; five went to their homelands of Chad, Iraq and Saudi Arabia; and a Yemeni went home dead, an apparent suicide victim. The 13th went to New York for trial as an al Qaeda co-conspirator.

About 230 remain. Lawyers estimate 50 of them need sanctuary in third countries, for fear of torture if returned home. Also, the federal courts are reviewing the detainees' cases -- and ordering that more be let go.

About 100 Guantánamo captives today are Yemeni. But the U.S. and Yemen can't agree on how to rehabilitate those the U.S. alleges answered Osama bin Laden's call to jihad in their teens and 20s.

It all falls on the State Department to negotiate each repatriation or transfer elsewhere. Ambassador Daniel Fried, who had been responsible for European affairs, heads the effort as special envoy for Guantánamo closure.

``The Bermuda thing was unusual and is almost certain not to be repeated,'' said an administration official with knowledge about the State Department's role. ``This is not easy stuff. We have to be methodical and we have to act with dispatch.''

The official was allowed to speak to The Miami Herald on condition he not be named.

Said White House spokesman Benjamin LaBolt: ``The administration is engaged in a dialogue with our allies around the world about the need to close Guantánamo in order to strengthen our security and take a propaganda rallying cry off the table for our adversaries.''

So for the moment, the June 11 transfer to Bermuda was the last success: Four Muslim Uighurs from China, picked up in Afghanistan and held for years at Guantánamo, moved to the British colonial paradise of white sandy beaches.

Since then, Congress has prohibited the use of federal funds for transfers and now requires detailed notification two weeks before future moves.

Bermuda provided the plane that flew the Uighurs to freedom, sparking a brief row with Britain over whether it had been properly informed. Also aboard the Gulfstream jet were White House General Counsel Gregory Craig, State Department envoy Fried and two attorneys from the Boston firm Bingham McCutchen, Sabin Willett and Susan Baker Manning.

Bingham lawyers had for years fought the Uighurs' case in the courts and media while quietly approaching what Willett described as ``dozens'' of countries to take the men.

None bit. In the process, Willett taught countless journalists how to pronounce Uighur -- wee-ghur.

But other transfer deals that simmered during the Bush years came to fruition once Obama announced plans to close the camps.

Consider Lakhdar Boumediene, an Algerian made famous because his is the first name on a landmark U.S. Supreme Court decision on Guantánamo.

Now 42, Boumediene lives in the south of France, an idea that jelled over a March 10 lunch at the French Embassy in Washington.

Attorney Rob Kirsch drank Perrier. Two diplomats drank wine. A tuxedoed waiter served veal while Kirsch told his client's story:

Captured in Sarajevo. Taken to Guantánamo by way of the U.S. base at Incirlik, Turkey. Accused and cleared of an unrealized plot to attack the U.S. embassy in Bosnia Herzegovina. Fought and won the right for all Guantánamo captives to have their cases heard by civilian courts in Boumediene v. Bush.

``In my five years on the case, it was the best working meal I ever had,'' Kirsch said.

On April 1, he got a call from a French diplomat who said that President Nicolas Sarkozy had agreed to take in Boumediene. Two days later, in Strasbourg, Sarkozy announced after a bilateral meeting with Obama that France would resettle a Guantánamo detainee.

``I was delivering an extremely low-risk, high-profile prisoner and that I thought that would be attractive to President Sarkozy,'' Kirsch said.

On its own, Boumediene's legal team lobbied France's equivalent of a CIA director, Bernard Bajolet. Bajolet was French ambassador to Sarajevo in 2002, when Boumediene was hustled off to Guantánamo, and had condemned it then.

The French and Algerian governments cooperated to get Boumediene's wife and daughters travel papers to leave Algeria, something that would usually require a husband or father to accompany them. They were in France to greet him May 15.

Kirsch and the captive worked together between Boston and the prison's Camp Iguana to write a formal request to Foreign Minister Bernard Kouchner.

It was all exchanged by computer and shuttled between Boston and Boumediene's barbed-wire encircled wooden hut by prison camp staff, so Boumediene was able to leave Guantánamo with travel papers from the French -- using a photo downloaded from Wikipedia.

``It showed what would happen if they cooperate with the lawyers,'' Kirsch said of the State Department, ``how easily they could get that place emptied.''

Earlier this month, an administration official said, a lawyer from the New York Center for Constitutional Rights met special envoy Fried's staffers at the State Department. The law group joined European and U.S. human rights groups in championing the cause of detainees during the Bush administration.

``We could only do so much without the U.S. government working with us,'' says CCR attorney Gitanjali Gutierrez. ``They're a partner at the table now, and I think that's a good thing.''

Lawyers from the London-based human rights group Reprieve took two trips to N'Djamena, Chad, in 2007 and 2008, to interest the government there in the case of Mohammed Gharani. His lawyers say he was 14 at capture, and grew his first beard behind the razor wire in Cuba.

Born in Saudi Arabia to guest worker parents, he went to Pakistan as a citizen of Chad to study the Koran. The kingdom didn't want him back even after he was cleared of terror suspicions at Guantánamo.

So Reprieve lawyers traveled to Africa. ``The pitch was, `This is a national of yours. He's never been charged with a crime,'' recalls attorney Zachary Katznelson. ``He's been abused . . . racially abused, psychologically abused, physically abused, cut off from his family. He's the only Chadian national there and he needs your help.''

Chad eventually contacted the State Department and asked for his return, says Katznelson.

But it didn't go quietly. The young man made headlines when a prison-approved family phone call to an uncle turned into a recorded chat with an al Jazeera reporter -- the only broadcast interview with a detainee in the prison camp's history. The military says captives can't talk to journalists, citing the Geneva Conventions.

The tactic made some lawyers wince. But Guantánamo attorneys have long argued their clients cases in the media, especially during the years when the Bush administration blocked them from the courts.

A father-and-son team from Boston, Michael Mone and Michael Mone Jr., worked with Irish-American contacts, Amnesty International and lobbied parliament members and media in Ireland to get their client's dossier before the Foreign Office in 2007.

The son traveled to Dublin in June 2008 and told government representatives from the foreign and justice departments that Uzbek Oybek Jabbarov, 31, wanted to leave Guantánamo to become a sheep herder in Ireland.

``We knew Ireland would be a good place for Oybek. We worked very hard to lay the groundwork with the Irish government. They have a strong commitment to human rights. We knew he'd be treated fairly,'' Mone Jr. said.

``Plus, he speaks English. There's no language barrier.''

Irish diplomats interviewed detainees at Guantánamo and announced last week that it had agreed to take in two men, reported to be from Uzbekistan. Now it's up to the State Department's Fried to seal the deal.

``He's The Closer,'' Mone said. ``And God love him.''

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About Carol Rosenberg

Carol Rosenberg


Carol Rosenberg reports on Guantánamo Bay, Cuba, the place, policy, people, war court.

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