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This letter is from my ex-wife Doris Tennant and her partner Ellen Lubell, pro bono attorneys for one victim of the United States War on Terror whom I've mentioned before here and here and here and here.  Their long dutiful service for this Guantanamo detainee is likely over now, as they did all they could within the illegal constraints almost arbitrarily established by the Bush administration and largely continued with President Obama.  Please don't argue about Obama.  Tonight is a night for tears.  This is a very sad end to the war crimes of the United States of America as committed toward Abdul Aziz Naji.

Abdul Aziz Naji: One Person

Earlier this week Ellen and I learned that our Guantanamo client, Abdul Aziz Naji, was forcibly repatriated to Algeria, where he was terrified to be returned. He is now being detained in Algeria, though we hope very much he will be released soon. However, the Algerian ambassador has stated to us that his government cannot protect him from extremists, who he very much fears will attempt to recruit him because of his association with Guantanamo. Our research in Algeria showed that his fears appear to be well founded. We fought hard to prevent his transfer, including petitioning for his asylum in Switzerland, but the US Supreme Court denied our request to stay his transfer late Friday night. It has been our privilege to work on his behalf, and our horror to learn what happened to him and to so many of the men in that place of hell. He became 8 years older there—he is now 35. He never did anything to harm the US or anyone else, and was never charged with a crime. Although the Supreme Court declared over two years ago that the Guantanamo prisoners have a right to challenge their detention in federal court, he could not pursue his habeas case because the Obama executive review team (consisting of representatives from the Departments of Justice and State, along with other top federal agencies) cleared him--essentially admitting there was no legal basis for his detention--though he was prevented from obtaining the court ruling to which he was entitled.

I am very grateful to each of you for your support over these years. It seemed the only thing we could really do for him was to educate our fellow citizens in his name.  We hope that you will send him your good wishes. He is no doubt very frightened right now, but he has a strong faith and steady mind, which we trust is serving him.

Here is the statement the Center for Constitutional Rights in New York issued about him:

We condemn the forcible repatriation of Abdul Aziz Naji to Algeria.  Although Mr. Naji has long been cleared of any connection with terrorism, we are deeply concerned that he will disappear into secret detention and face the threat of persecution by terrorist groups in Algeria.  He bears no ill will toward the Algerian government, but fears that it will be unable to protect him from extremists in Algeria.  

Mr. Naji fled various forms of persecution in Algeria many years ago, including having been attacked by an extremist.  His attempt to avoid forced repatriation and remain at Guantánamo Bay, after nearly a decade of detention without charge or trial, rather than return to Algeria underscores the depth of his fears.  Regrettably, our government repatriated him against his will and despite credible fears of future persecution, in violation of the U.N. Convention Against Torture and other international law.

CCR supports the ongoing efforts of the U.S. State Department to close Guantánamo Bay, particularly in the face of unyielding resistance from Congress and the seemingly detached indifference of the White House to the continuing plight of the men held in our notorious prison.  However, the solution to Guantánamo Bay does not rest on forcing detainees to return to countries where they fear torture and persecution.  It is not only illegal, but also bad policy.  It is another unnecessary stain on our country’s human rights record, and certain to upset our friends and allies around the world.  Forced repatriations make the United States appear complicit with repressive regimes and are certain to outrage Arabs and Muslims around the world at a time when our government needs their support.

Attorneys for Mr. Naji have fought tirelessly for their client over the course of many years.  Unfortunately, their efforts to prevent the forced repatriation of their client ended late Friday night with the Supreme Court’s denial of an application to stay his transfer.  We admire their selfless dedication, and our thoughts are with their client in Algeria.

This will likely be the last letter updating the status of Aziz.  After 8 years of illegal imprisonment, never charged with a crime, Aziz faces a bleak outlook as he is being sent to Algeria.

This is an information/fund-raising letter from Doris and Ellen sent out on May 4, 2007.  It is included in the first link above:

Dear Friends and Colleagues,

We are writing to give you an update on our Guantanamo client, Abdul Aziz Naji, who turns 32 years old today.  We met him in early February in the prison at Guantanamo.  We found him to be a charming young man, shy but eager to speak with us.  We had planned to begin our meeting with very general conversation to try to put him at ease, but he didn’t want to waste a moment. He wanted to tell us the story of how he had gotten to Guantanamo, and he encouraged us to ask him questions.  Over and over he expressed his gratitude that we were there to help him.  He has a 6th grade education and apologized for not being able to write well, but he assured us that he could read our translated letters. He badly wanted to know what was happening in the world, but we could not tell him because we are prevented by the US government from discussing any news with him that is not directly related to his case.  He spoke for some time about how difficult it was not to see the sun or trees or other people. He described his needs for medical attention, which were not being met.  He told us that God would enable him to get out of prison some day.

Abdul Aziz Naji’s story is this:  After working with his father as an ironworker and then serving in the Algeria military, he went to Kashmir to work for a social service organization, delivering humanitarian aid to impoverished Muslims in that area. (The concept of community in Islam, as we understand it, includes the provision of support or charity—zakat—for those in need, which could be a monetary contribution, disaster relief, or other social service work.)  Shortly after arriving, he stepped on a landmine (in a country laced with them) and lost his leg, going to a hospital in Pakistan for treatment and rehabilitation. About a year later, when he was well enough to move about on his own, he visited the home of local man. He and that man were arrested. It’s not clear to us why this occurred – perhaps the man he was visiting was under suspicion, or perhaps the men were turned in by neighbors, like many men in Pakistan and Afghanistan, in return for the generous bounties that the US government was offering. Although the Pakistani police interrogated our client and found no reason to hold him, indicating he was free to go, some Americans who were present at his interrogation indicated that they wanted him. He was taken first to the US prison in Bagram, Afghanistan and then to Guantanamo. Though initially he was badly beaten and his prosthetic leg was taken away for several months, with a promise of return if he "confessed," he has not been interrogated for a long time, which indicates the government does not consider him to have any intelligence value.  

Many of the men held at Guantanamo have been living in conditions that permitted them some interaction with other prisoners, occasional exercise and exposure to sunlight, and meals and religious worship within sight and hearing of other prisoners.  During the past few months, however, most of the men—including our client—have been transferred into a newly built maximum security facility where each man is kept in solitary confinement, with no windows, little or no exposure to sunlight or fresh air, little or no exercise (when offered, it’s frequently at 2:00 am), and no ability to see or hear others during meals or prayer. Although our client seemed to be holding up fairly well, many of the men have deteriorated terribly since their transfer into this long-term solitary confinement. They have become unable to work with their lawyers due to paranoia or extreme withdrawal, or they have become psychotic.  We have requested government approval for a second visit with our client in late May, but as of this writing, the government has stated its intention to begin severely restricting attorney visits. Apparently, the level of isolation and hopelessness faced by these men is not yet satisfactory to the government.

We recently received a letter from Abdul Aziz’s parents in Algeria, in quick response to our having written them.  It was filled with expressions of thanks and hope for the safe return of their son: "We thank you profoundly for the legal efforts you have undertaken on behalf of our son, who has not given us any news for nearly five years. We are very worried because before we didn’t know the circumstances or the place of his detention...we are indeed grateful for your efforts and kindness in going to visit him...you gave our family a new hope..."  We plan to arrange a conference call with his parents and a translator very soon.  

We have filed Freedom of Information requests with the Department of Defense and various other government agencies, which, we were recently informed, will probably not be acted on for years.  We have submitted information to the Department of Defense in support of our client for purposes of the government’s annual "review" of the prisoners to determine if they are still "enemy combatants." We are under no illusion that our submission will make any difference, and of course we’ve heard nothing back on this.  We’ve written to the US State Department requesting a meeting to discuss what options our client has, if released from Guantanamo, to be settled safely in another country. Receipt of our letter was acknowledged, but we have not been granted a meeting.  

Along with many of the other attorneys, we’ve filed motions with the federal district court in Washington, DC, requesting the government provide us with information regarding the grounds on which our client is being held.  The government opposed the motion and now seeks to dismiss all of the Guantanamo cases. We have opposed the government’s motion to dismiss, and are filing a new petition under a very unfavorable law that is the only venue we now have—the Detainee Treatment Act, by which Congress in late 2005 took away the Guantanamo prisoners’ habeas corpus right under the US Constitution to challenge their detention—a right that in 2004 was upheld by the US Supreme Court. As we write this, not one Guantanamo prisoner has had an impartial hearing before a neutral decision maker to determine if there is a basis for his detention.

The Supreme Court, now of a different composition, recently stated that it might consider the Guantanamo prisoners’ cases at some point in the future, but not until they subjected themselves to proceedings created by the Detainee Treatment Act, which was further fortified by the Military Commissions Act, passed by Congress last fall.  It is a disturbing ruling because the government says the purpose of these proceedings is not to determine if a prisoner is actually an ''enemy combatant,'' but rather to determine if the military followed its own rules in applying the ''enemy combatant'' label. For that reason, Guantanamo prisoners will have no chance to produce evidence of their innocence that the military did not consider, or to challenge the use of evidence obtained through torture. Worse yet, these procedures will be held before the same appeals court that recently found the prisoners have no rights at all.  

Last week we were part of a large group of Guantanamo lawyers who met on Capitol Hill with Senators and Congressional Representatives to discuss the importance of passing new legislation to restore habeas corpus rights to the prisoners. It looks like the restoration of this right, a core principle of our nation, will be a very close vote in a Congress where both parties remain afraid of being thought soft on terrorism. Contacting your Senators and Representative to request their vote for habeas corpus restoration will help to ensure that this most important avenue of relief from arbitrary detention is preserved here—and to show the world that our embrace of justice and responsible governance prescribes how captured members of our own military and diplomatic personnel should be treated.  

As dismal as this report is, we do have hope that one day Guantanamo will be closed and that our government will abide by the rule of law.  We are deeply grateful for your interest and your generosity. There’s no way we could be doing this without the wonderful support of people like you. It makes such a difference.

Warm regards,

Ellen Lubell    Doris Tennant

My children have been through much emotional turmoil over the situation of the man we know as Aziz.  The youngest wrote a reflection on fundamentalism, faith and the inhumane treatment for Shambhala Sun, Fundamental Faith:  Lessons From Guantanamo:

Every few months, my mother rides in a tiny, decades-old government airplane to Guantánamo Bay, Cuba, where she meets with her pro bono client, Abdul Aziz Naji. Aziz is a thirty-four-year-old Algerian man who has been held at Guantánamo for eight years without being charged with a crime. Four years ago, my mother and her law partner Ellen volunteered to take on his case, in hopes of forcing the U.S. government to grant Aziz habeas corpus, the right to challenge his detention in a court of law. This basic human right has been intrinsic to all civilized societies since the proclamation of the Magna Carta in 1215.

My mother describes Aziz, who has spent the last several years in solitary confinement, as a small man with a polite, gentle way about him. He lost a leg to a land mine some years ago, and uses a prosthesis that is a bit too short. During meetings with my mother and Ellen, his legs—both real and prosthetic—are shackled to the floor. Even as he describes how much he misses his family and asks again and again when he will be freed, Aziz smiles and laughs frequently; he constantly thanks his lawyers for their efforts on his behalf (though, so far, their work has yielded no concrete results) and asks after their families. He frequently tells my mother that he is able to accept his situation because he has absolute faith in God’s plan for his life.
snip

Aziz’s method of worship similarly entails simple kindness to others. He frequently tells my mother and her law partner—who is Jewish, as are many of the Guantánamo lawyers—that he is keeping them and their families in his prayers, and I often end my meditation and yoga practice with the wish that "any merit gained from this practice be dedicated to Abdul Aziz Naji."...
snip

As I was writing this, I learned that Aziz had gone on a hunger strike. Although he has been "cleared for release" for many years, he remains stuck in limbo between a windowless, solitary cell and a return to Algeria, where the fate of former Guantánamo prisoners is uncertain at best. Because of his association with terrorism, however groundless, Aziz would run the risk of imprisonment and torture in Algeria; he also could be forcibly recruited by extremists. "All the golden ideas I had in mind are no longer here," he told my mother. "I just want a simple life. I have had my dreams destroyed."

As my mother’s attempts to get another country to grant Aziz asylum prove more and more hopeless, Aziz has resorted to the only means of protest available to him: refusing food. Like other Guantánamo prisoners on hunger strikes, he is force-fed through a tube in his nose twice a day. Already a thin man, he has lost thirty pounds.

Aziz loves chocolate, which my mother and Ellen usually bring him on their visits, sometimes along with homemade meals. On their most recent trip, they tentatively laid out a few snacks on the table in front of Aziz, unsure if he would break his fast. He smiled broadly when he saw the chocolate, and then ravenously ate two bars with evident delight. After thanking my mother and Ellen for the food, he began to imagine the traditional Algerian meal he would share with them if he were at home. "Inshallah," he said, "someday we will eat together someplace other than here."

The politics
This ending tonight of an individual story of injustice sent me looking through the my earlier reactions to this nearly unbearable saga of the raping of the most fundamental principles the founders died for--empowering of the common person against the forces of tyranny.

I know in my gut that torture is fundamentally wrong and a fundamental violation of U.S. principles.  At first I struggled to support this position, feeling at times that I was arguing largely in a vacuum.  Why We Don't Torture connects opposition to torture with our most fundamental founding principles:

The Declaration of Independence seeks to justify our existence as a nation.  Ninety one words into our birth, we find the phrase, "unalienable rights."

all men [read all humans] are created equal, that they are endowed by their Creator with certain unalienable rights

The right of each individual to dignity in his person is inherent, unalienable.  Neither heinous behavior nor governmental necessity renders this right forfeit.  Only in the most immediate need for self-defense does our state allow the violation of a person's dignity.  The most sadistic serial killer must be treated with dignity the moment he is in the custody of the state.  

This cornerstone of our founding is enshrined in U.S law as described by Bush administration lawyer Philip Zelikow in the Foreign Policy web site:

Once you get to a substantive compliance analysis for "cruel, inhuman, and degrading" you get the position that the substantive standard is the same as it is in analogous U.S. constitutional law. So the OLC must argue, in effect, that the methods and the conditions of confinement in the CIA program could constitutionally be inflicted on American citizens in a county jail.

(Consider the implications of the above for whether the approved methods were illegal.  To take one of the mildest methods under discussion, being forced to sit in one's own waste is undoubtedly degrading.)

We do not believe in waterboarding U.S. citizens in prison.  We do not discuss whether this would be an effective means to control the prison population.  We do not debate the effectiveness of stress positions as a means to pry information from prisoners.  Our core belief, a basis of our system of justice, is that every human enjoys an inherent right to dignity in their person.

Then dear TahoeBasha3 linked testimony before Congress which clarified the question of legality beyond a shadow of a doubt.  The magic word for me was jus cogens.  If anyone has doubts that prosecutable war crimes took place during the Bush administration, they need to listen to thetestimony before Congress of three honest lawyers:

The prohibition against torture is a jus cogens norm.   jus cogens are defined as norms "accepted and recognized by the international community of states as a whole ... from which no derogation is permitted..."   In international criminal law, the legal duties that arise in connection with crimes designated as violations of jus cogens norms include the duty to prosecute or extradite, the non-applicability of statutes of limitations, the non-applicability of any immunities up to and including those enjoyed by Heads of State, the non-applicability of the defense of "obedience to superior orders" and universal jurisdiction over perpetrators of such crimes. Other jus cogens norms include the prohibitions against slavery, genocide, and wars of aggression.  jus cogens norms, like customary international law norms, are legally binding. No affirmative executive act may undercut the force of these prohibitions nor may a legislature legalize crimes designated as violating jus cogens norms or immunizing from prosecution those responsible. jus cogens norms differ from norms which have attained the status of customary international law by dint of their universal and non-derogable character and the fact that jus cogens norms are peremptory, that is, they trump any other inconsistent international law.

While legal scholars often differ as to what specific acts can be defined as being subject to jus cogens norms, it is beyond dispute that the prohibition against torture has attained that status.

I cried when I heard that testimony from Marjorie Cohn.  There would be no slipping off the hook with inside legal shenanigans.  I walked around for three days murmuring and singing jus cogens.  The very existence of the word proved that somewhere in the world there is sanity, memory of decency, and a hope of justice.

This very moment I'm wearing a tee shirt made by friends during the excitement of Obama's campaign.  It depicts George W. Bush in an outhouse/jailhouse marked as his presidential library.  Written on the toilet paper is a list of the many crimes of his administration.  But word began leaking out that there would be no prosecution of the war crimes of the Bush cabal.

I would not have guessed that John Yoo would still be a lawyer in good standing:

How dangerous are the now discredited writings of John Yoo?  The above testimony makes plain that our legislative branch of government has failed to assert it's proper constitutional authority...  After the last two years of a Democratic Congress, no thinking person can imagine that Congress will exercise power commensurate with the fascist machine they propose to expose.

The founding fathers well understood the common challenges to freedom.  After risking their lives in war, they devoted their remaining energy to protecting government of the people.  The opinions of John Yoo are much worse than poor legal documents; they are a bald attempt to trample on constitutional liberties and enable tyranny.  They are a direct attack on the constitution in both letter and spirit.  If we are to maintain our freedom, we must act forcefully to repel these assaults on our constitution, the "palladium of our political safety and prosperity."

If we are to be true to our founders, it is time for prosecution or revolution.

Looking back, if we were a community who could read the future, every one of us would have commented simply "Fat Chance nt" in the diary containing this report:

Attorneys for detainee Abd Al-Rahim Hussain Mohammed al-Nashiri today sent a letter to CIA Director Leon Panetta requesting that the CIA "black site" buildings, interrogation cells, prisoner cells, shackles, water boards and other equipment be preserved for inspection and documentation. Al-Nashiri, who is now detained at Guantánamo, was held in the secret CIA prison facilities from 2002 to 2006. Director Panetta has ordered the closure of CIA black sites, but al-Nashiri’s attorneys are concerned that the CIA intends to destroy the sites – including the buildings and the equipment used to interrogate and torture al-Nashiri and other detainees – and in doing so destroy evidence of his mistreatment.

The famous "disappointment in the Obama" meme began with me as a result of his speech on torture, the first time that his words felt like empty rhetoric.  Obama said:

This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past.

This is a very sad diary:  Obama's Empty Call for Reflection

"This is a time for reflection, not retribution."
Some may be bloodthirsty for revenge.  Others may be interested only in the blame which Obama tells us will not help.  But what of the many U.S. and global citizens who hunger for justice?  We are the responsible critics, calling for reasonable accountability in accordance with well-established universal law.  President Obama either insults us by demeaning our motives or ignores us by offering no response to the call for accountability.  Retribution is whimsically visited by the powerful on the weak; justice is blind to power and unbiased by circumstance.
snip

"This is a time for reflection, not retribution."
When the hidden meaning of this innocuous sounding sentence is examined, the high-sounding words fail to cover the bare meaning.  Our country does not intend to honor our obligations under international and domestic law.  Rather than investigate and bring to justice those who planned, ordered, and committed acts offensive to all civilized people, we propose to move forward with absolutely no accountability.  We presume to choose when accountability to the laws of nations is appropriate.  This behavior can only be counted as arrogant, exhibiting an abandonment of responsibility to other nations while presuming a special status which exempts us from the common demands of justice.  Beautiful words do not hide this ugly truth.

For a while, many of us held our breath for the pending DOJ Office of Professional Responsiblity report while there arose a brief hope that Holder would appoint a special prosecutor in apparent disagreement with the words of Obama: Holder May Appoint Counsel, Next Step: OPR Opinion

It's been an emotional two days for those of us who don't sleep well knowing our country almost certainly committed war crimes.  It's a kneejerk issue for me -- I'll admit that without apology.  If America doesn't hold its leaders accountable for torture, then it's no longer my America.  And I love my America dearly.  Country aside, the core of my being is offended by the existence of torture in this world.  If some of my money bought waterboards, I now have a stake in the company.  Call it moralizing if you like, but I just can't live with that.  And yes, I become very emotional.

But tonight, after an especially discouraging day, hope comes from the Rachel Maddow Show in the form of interviews with the estimable Senator Sheldon Whitehouse and Michael Isikoff from Newsweek Magazine.  For me, sources don't get much more reliable than Senator Whitehouse.
snip

So, fair warning, I'm going to wait in a state of near-hysteria--I ain't gonna quiet down.  And I'm not trusting Obama.  And I'll remain convinced that the intelligence agencies are actually running the show and that our government is owned by the corporations.  But I will try to remember that nothing more is going to happen, nothing more is likely to emerge, before the issuing of the OPR opinions.  For those of you already bored by this topic, I would suggest a vacation that week, because we moralizers will be reacting to every word.  We will be insisting that torturers see justice.

Is This the Last Look Back?

It would be more appropriate for Aziz to be a gardener in Brentwood than for him to be recruited by terrorist groups in Algeria.  All his golden dreams are gone now.  Is it justice for Aziz that the U.S. government detained him for eight years in violation of international and domestic law, likely torturing him during his detainment in violation of the most basic tenets of civilization, only to send probably to further torture and likely death without benefit of due process?  Thinking of Aziz, "looking forward, not back" rings shallow and callous, a thin justification of behavior which is fundamentally wrong, ethically and legally.

This is a very sad day.

Originally posted to geomoo on Fri Jul 23, 2010 at 12:19 AM PDT.

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