A federal appeals court on Thursday zeroed in on the problem of Guantanamo Bay in reverse — detainees in U.S. custody who want out but don't want to be sent home.Ahmed Belbacha isn't happy to be at Guantanamo Bay, but neither is he happy about the alternative he says was chosen for him by the U.S. government, Algeria, where Belbacha says he'll be tortured. Belbacha's lawyer, David Remes, asked a three-judge panel to block any plans the Bush administration might have for moving his client into Algerian custody until the Supreme Court decides a case covering all Guantanamo Bay prisoners.
On Wednesday, the Supreme Court debated whether the detainees at the U.S. naval prison in Cuba have the right to take their cases to federal courts. A decision is expected in the spring.
There are other Guantanamo Bay cases with similarities to Belbacha's. In October, a federal judge blocked the Pentagon from transferring detainee Mohammed Abdul Rahman to Tunisia. The government has notified the court it intends to appeal the judge's decision in favor of Rahman, who says he would be tortured there.
Jamil el-Banna has been facing the possibility of being returned to Jordan, where he says he was tortured in the 1990s and would be again. El-Banna also has lived legally in England, and negotiations between the United States and Britain are under way for his possible return there instead of Jordan. He was taken into custody five years ago.
Lawyers for another detainee, Abu Abdul Rauf Zalita, are seeking to block his transfer to Libya, arguing he faces torture if he is returned there. Zalita says he married an Afghan citizen and that after the U.S. invasion of Afghanistan, he and his pregnant wife fled to Pakistan where he was handed over to U.S. authorities for a bounty.
Guantanamo Bay isn't the only place where people in custody are resisting being sent somewhere else. Two naturalized U.S. citizens held in Baghdad and an Afghan held at the Bagram military base in Afghanistan are resisting efforts to turn them over to local authorities. On Friday, the Supreme Court will decide whether it will hear the cases of the two naturalized U.S. citizens.
In Belbacha's case, the U.S. military has classified him as an enemy combatant, while saying he is eligible for transfer subject to appropriate diplomatic arrangements for another country to take him. Remes, his lawyer, says he went to court after hearing from a confidential source the U.S. government planned to turn him over to Algeria. Belbacha was brought to Guantanamo Bay in 2002 from Pakistan. He had been an accountant at the government-owned oil company Sonatrach. Recalled for a second term of military service in the Algerian army, Belbacha says he was targeted with death threats by terrorists in Groupe Islamique Armee, then at the height of a violent campaign for an Islamic Algeria. Belbacha never reported for duty, but he says the GIA visited his home at least twice and threatened him and his family. He left the country, traveling to France, England, Pakistan and Afghanistan before being sent to Guantanamo Bay.
Belbacha's lawyer faced a tough reception at the U.S. Court of Appeals for the District of Columbia Circuit, where Judge A. Raymond Randolph seemed unwilling to block a possible transfer to Algeria. Randolph, an appointee of President George H.W. Bush, wrote the opinion in February closing the door on the detainees' access to federal courts, prompting prisoners' lawyers to take their cases to the Supreme Court.
Another judge on the Belbacha case, Judge Thomas Griffith, expressed doubts about intervening in a possible transfer based on the mere possibility that the Supreme Court will decide in the detainees' favor months down the road. "Are we supposed to divine" how the justices will rule from Wednesday's Supreme Court arguments? said Griffith, who was appointed to the appeals court two years ago by President Bush.
The judges questioned the Justice Department lawyer about how imminent Belbacha's departure from Guantanamo Bay might be. "Is there any current plan to transfer this individual?" Randolph asked.
"We can't comment," Justice Department lawyer Catherine Hancock replied.
The third member of the panel, Chief Judge Douglas Ginsburg, speculated about a possible alternative to Algeria, referring to the cases of five Chinese Muslims given refuge in Albania because they feared being put to death or tortured if returned to China. Picked up during the U.S. invasion of Afghanistan, the Uighur Muslims are suspected by their government of being members of a group waging a violent separatist campaign in China's northwestern Muslim region.