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Local lawyers representing Guantanamo detainee await changes by Obama administration

An unidentified detainee at the "Camp Four" detention facility at Guantanamo Bay last year.
REUTERS/Mandel Ngan
An unidentified detainee at the “Camp Four” detention facility at Guantanamo Bay last year.

Minneapolis attorneys will have major news to relate to their client when they fly to Cuba to meet with him in February.

Item one: President-elect Barack Obama intends to close the controversial prison at Guantanamo Bay, Cuba, where the client — an Algerian man named Ahcene Zemiri — has been locked up for almost seven years.

Obama pledged while campaigning to shut down the prison camp which is seen by many around the world as a stain on America’s honor. Now he is poised to do so by executive order next week as one of his first acts in office.

Closing Guantanamo would “send exactly the right signal to the rest of the world and the right tone for the new administration,” said Nicole Moen, who has made five trips to meet with Zemiri at the prison. She is one of four attorneys at the Minneapolis firm Fredrikson & Byron who volunteered to take a Guantanamo case without compensation.

Human rights organizations are incensed because Obama said it may take months to move all of the detainees and close the legal books on the prison the Bush administration created to hold men it alleged were terrorists.

But Moen was more patient: “You do have a fair number of people there and things take time…. I am inclined personally to withhold criticism although I hope the new administration will proceed as quickly as possible.”

Nicole Moen


Item two: After years of legal maneuvering, the federal courts are moving on the individual cases of 248 men who remain behind bars at Guantanamo. On Wednesday, a federal judge ordered the release of a detainee from Chad, ruling that the government’s evidence was too weak to justify holding him longer.

U.S. District Judge Richard J. Leon said the Justice Department failed to prove that Mohammed El Gharani, 21, was an enemy combatant because it relied almost exclusively on statements made by two other detainees whose credibility has been called into question by government personnel, the Washington Post reported

“A mosaic of tiles this murky reveals nothing about this petitioner with sufficient clarity, either individually or collectively, that can be relied upon by this court,” Leon ruled from the bench.

The government alleged that Gharani traveled to Afghanistan and trained at an al-Qaeda-affiliated military camp, fought in the battle of Tora Bora and was a courier for high-level al-Qaeda members.

The government also alleged that Gharani was a member of a London-based al-Qaeda cell in 1998, an accusation that Leon found particularly hard to believe, the Post reported. Gharani was 11 at the time, living with immigrant parents in Saudi Arabia, according to the detainee’s lawyers.

“Putting aside the obvious and unanswered questions as to how a Saudi minor from a very poor family could have even become a member of a London-based cell, the Government simply advances no corroborating evidence for these statements it believes to be reliable from a fellow detainee, the basis of whose knowledge is — at best — unknown,” Leon said.

Like Gharani, the Algerian represented by the Minneapolis lawyers is challenging his detention through the constitutional right known as habeas corpus.

For the first time since Zemiri’s habeas corpus lawsuit was filed in 2004, the court has set dates for both sides to present key documents, Moen said. And a status conference is scheduled for April.

“So we are on track to have real movement in the case,” Moen said.

Item 3: Obama’s transition team also has signaled he intends to abandon or revamp the military commission system that was devised by the Bush administration and sanctioned by the Republican-controlled Congress in 2006.

The system does not guarantee enough due process rights for detainees, Eric Holder Jr., Obama’s pick for attorney general, said at his confirmation hearing on Thursday.

If the commissions aren’t scrapped, he said, they must be overhauled to ensure “due process rights that I think are consistent with who we are as Americans.”

The U.S. Supreme Court already had shot major holes in the system that was intended to serve as an alternative to federal courts for detainees charged with serious crimes. Now, Obama seems poised to bury the corpse.

The government claimed that the commission system was needed to handle cases loaded with classified information and national security implications. And some officials are maneuvering in the final hours of the Bush administration to make it difficult for Obama to move the Gitmo cases outside the system.

Ahcene Zemiri
Ahcene Zemiri

Moen is among critics who argue that federal courts are equipped to handle sensitive evidence and to do a better job of fairly and accurately sorting through cases to determine which suspects truly are threats to the United States and should remain locked up.

The commissions have produced three convictions in seven years. By contrast, Moen said, federal courts have handled more than  100 terrorism cases.

“We have a system that works, and I think we should use that system,” she said.

Sneaking out of Afghanistan
While a few high-profile suspects have gone before the commissions, Zemiri’s case is more typical of the majority of the detainees who have not been deemed the most serious threats.

Zemiri was captured in Afghanistan in November 2001 as he and dozens of other Arab men tried to sneak out of the country during the heat of war. He has denied participating in terrorist activities, and his attorneys say they have seen no evidence he did so.

The government has filed a new statement of the facts in Zemiri’s case, Moen said. It is classified, but sketchy records the government released earlier show dozens of allegations against Zemiri. Some are vague: that he lived close to the leader of a militant Islamic group in Algiers, for example. Some are specific: that after living in France for a while, he left with a forged passport to enter Canada in 1994.

The most potentially serious allegation is that Zemiri had provided financing and equipment to a friend — Ahmed Ressam, who came to be known as the Millennium bomber. Ressam was convicted in federal court of plotting to blow up the Los Angeles airport in 1999. After cooperating with authorities in cases against other suspects, Ressam is serving a reduced sentence of 22 years in a federal prison.

Ressam also is Algerian, and the two men had been friends in Montreal.

After Ressam’s arrest, authorities investigated and wiretapped his associates in Canada. Some were arrested. Some fled. But Zemiri apparently passed the scrutiny at the time.

In 2006, Ressam sent a letter from prison to the federal judge in his case saying that Zemiri knew nothing about the bombing plot.

“It is true that I have borrowed some money and a camera from him, but this was only a personal loan between him and me,” Ressam wrote. “It has nothing to do with my case.”

Where to send them
The meeting with Zemiri in February will be the first the Minneapolis attorneys have been able to arrange since early 2008. The other attorneys on his team are Debra Schneider, James Dorsey and John Lundquist, all with the Fredrikson firm in Minneapolis.

It isn’t clear whether Zemiri knows of the major recent developments, Moen said, although the attorneys have sent letters to him outlining what’s happening in his case. The men detained at Guantanamo are kept isolated from one another and from the outside. But they seem to find ways to communicate and also to pick up on signals from their guards.

“He should have some idea of what’s going on with the cases and the political situation,” Moen said.

That is not to say he could have a clear picture of his future.

In closing Guantanamo, Obama is not saying by any means that all of the suspects should be let go. 

More than 500 detainees have left Guantanamo after their countries negotiated their releases and took them home. As courts sort through the remaining cases, some charges no doubt will stick and result in prison sentences.  

But it is not at all clear what would happen to those who aren’t convicted and who no country has rescued after all of these years.

Zemiri loved life in Canada, Moen said, and that’s where his wife lives with the son Zemiri has never seen. But Zemiri was there illegally.

He is a citizen of Algeria, but human rights organizations have raised concerns about abuses in the country and how returning detainees would be treated.

Still, Moen said, he has family who would welcome him in Algeria.

“He can go home,” she said.

Sharon Schmickle writes about national and foreign affairs and science. She can be reached at sschmickle [at] minnpost [dot] com.

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