JURIST Guest Columnist Naureen Shah, from the Human Rights Institute at Columbia Law School says that some Guantanamo detainees cannot go home and the US should design smarter monitoring protocols, let courts and the public test decide whether diplomatic assurances can prevent abuse, and resettle detainees who face too great a risk of torture….

The men still at Guantanamo may never see home again. But there are nearly two dozen who, like Farhi Saeed bin Mohammed, are so afraid of being tortured that they would rather stay at Guantanamo than be returned home.

It is difficult to fathom anyone preferring endless imprisonment to going home. But Farhi, who won a federal court order for his release after having spent more than eight years at Guantanamo, preferred just that. He worried that in Algeria, he would be tortured by the government or terrorist groups. But the U.S., having received “diplomatic assurances” from Algeria that he would be treated humanely, sent him to Algerian custody against his will.

Farhi’s case is not the first of its kind. The U.S. has repeatedly sent detainees to possible torture based on “diplomatic assurances,” promises from foreign governments with records of condoning, encouraging, and sometimes covering up torture, that this time, they will not torture.

Though the State Department checks up on returned Guantanamo detainees, torture is typically clandestine and hard to detect or deter. If an unreleased Wikileaks cable is any indication, the U.S. is not doing nearly enough to prevent delivery from the purgatory of interminable detention at Guantanamo to the hell of torture in the shadows.

The cable describes a U.S. embassy visit to former Guantanamo detainee Rukhniddin Sharopov whom the U.S. sent along with detainee Mokit Vohidov to Tajikistan in 2007. The State Department has reported “harsh and life-threatening” conditions in Tajik prisons, where beatings are “common.” Security officials use “systematic beatings, sexual abuse and electric shocks to extort confessions.” Unsurprisingly, and whatever the assurances, within months of their return, Sharopov and Vohidov cried out in open court that Tajik interrogators had tortured them.

Still, the cable shows the U.S. embassy behaving with baffling ignorance or indifference to the risk of further abuse. In late 2009, the Tajik authorities denied the U.S. embassy access to Sharopov for more than three months. During this time, they transferred him from general prison to pre-trial detention, allegedly for attempting to escape. That left Sharopov vulnerable to abusive interrogation again with no chance for U.S. officials to detect abuse or intervene.

When U.S. embassy staff finally met with Sharopov in December 2009, they may have put him in further danger. Flouting the basic rules of torture monitoring, they interviewed Sharopov in the presence of his captors. If he even hinted at abuse, Sharopov risked retaliation. Yet, he might have made hints. The leaked cable says he “casually” referred to his time at Guantanamo as a “sanatorium” [sic]. Compared to torture at a Tajik prison, no doubt.

U.S. staff asked Sharopov to confirm he was treated “the same” as all the other Tajik prisoners- a perverse cross-examination given U.S. knowledge of widespread mistreatment. Yet they did not conduct a medical or psychological exam to catch signs of torture that he may have feared revealing or that Tajik authorities might have purposefully concealed.

We cannot know what became of Sharopov. Tajik authorities have blocked even the International Committee of the Red Cross from their prisons. But this kind of monitoring is bound to fail. In Bush-era rendition cases, there is proof it did. In December 2001, according to media and Council of Europe investigations, masked U.S. commandoes helped Sweden deliver asylum-seekers Ahmed Agiza and Muhammad Alzery to Egypt, based on diplomatic assurances. Five weeks later, the Swedes visited to check for abuse. They did not see bruises or bleeding. The men, also interviewed in the presence of their captors, evaded the Swedes’ questions and simply pleaded with them to visit again. Both had been beaten and electrocuted.

The U.S. has gotten duped before, too. Other Wikileaks cables reveal “credible reports” that a Guantanamo detainee sent to Tunisia in 2007 was abused, with the Tunisian government blocking the U.S. from checking on him later. That prompted the U.S., rightly, to refuse more transfers, provoking the now fallen Tunisian government’s ire.

But the Justice Department has not foreclosed the option of sending another detainee, Umar Abdulayev, into Tajik custody. Across the board, the U.S. is shirking judicial review of torture questions, wrapping itself in rhetoric of national security and executive prerogative, all too reminiscent of the Bush administration. The Justice Department even waited to tell the Supreme Court about Farhi, the latest forced returnee, until after he was put on a plane, even though he had a pending petition with the Court.

With secrecy and obfuscation, the U.S. once again stands alone among its peers. The UK and other allies, dealing with terrorism suspects in deportation cases, give them a day in court by providing the terms of assurances and blueprints for better monitoring, including regular, private interviews of returnees, conducted by professionals trained to detect abuse.

The U.S. government should do the same: design smarter monitoring protocols, let courts and the public test claims that diplomatic assurances can prevent abuse, and resettle detainees who face too great a risk of torture. To truly end the legacy of Guantanamo, the U.S. should ensure the safety of the men too afraid to go home again.

The author is Naureen Shah, a lawyer at the Human Rights Institute at Columbia University School of Law in New York

Suggested citation: Naureen Shah, They Can’t Go Home Again, JURIST – Forum,
Feb. 10, 2011, http://jurist.org/forum/2011/02/they-cant-go-home-again.php.