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Zalita v. Obama

Synopsis

Abdul Ra’ouf Ammar Mohammad Abu Al Qassim is a Libyan refugee who was detained in Guantánamo for nearly eight years. His habeas corpus petition was under the name Zalita v. Obama.

The U.S. government determined very early on that Mr. Abu Al Qassim should no longer be imprisoned in Guantánamo. The Defense Department, however, sought to transfer him to the custody of the human rights-abusing regime of Colonel Muammar Al-Qadhafi, where he faced certain torture and persecution. Mr. Abu Al Qassim was the first Guantánamo detainee to present a legal challenge to the U.S. government’s intention to transfer him to his native country despite his well-founded and well-documented fear of indefinite detention, torture and death.

Status

Mr. Abu Al Qassim was resettled in Albania in February 2010, where he now lives along with several other former Guantanamo detainees from different countries given safe haven by the Albanian government.

Description

Zalita v. Bush was a petition for habeas corpus filed on behalf of Abu Abdul Rauf Zalita, a.k.a. Abdul Ra’ouf Ammar Mohammad Abu Al Qassim.

Mr. Abu Al Qassim was conscripted into the Libyan Army when he was about 18 years old. The onset of psychiatric illness forced him to desert the army, and he soon fled Libya for fear of persecution because he was an observant Muslim. During the next ten years, Mr. Abu Al Qassim lived abroad as a refugee and survived on the charity and generosity of those who offered him places to stay. In 2000, he married an Afghan woman and settled in the Afghan capital of Kabul. When the U.S. bombardment began in October 2001, Mr. Abu Al Qassim fled with his pregnant wife to seek refuge in Pakistan.

Soon after his daughter was born, Mr. Abu Al Qassim fell victim to the chaos of the war. He was arrested at his home in Lahore in front of his wife and infant daughter and turned over to military authorities, likely for a sizable bounty. The U.S. government claimed that Mr. Abu Al Qassim is associated with the Libyan Islamic Fighting Group (LIFG), a group opposed to the Qadhafi regime, because he stayed in the home of some men who have been accused of later joining LIFG. The mere allegation of his association with LIFG virtually guaranteed that he would have been severely persecuted if forcibly returned to Libya.

The United States had previously transferred two Libyan Guantánamo detainees to the Qadhafi regime based on patently unreliable diplomatic assurances that they would not be mistreated. The men were transferred in 2006 and 2007, respectively, and both were held in prison for years without charges, trial or access to counsel; one reportedly remains in prison. One was transferred despite his urgent protests to officials at Guantánamo that he would be subjected to torture or worse if forcibly returned. According to one unclassified account, this man was reportedly interviewed by Libyan officials in Guantánamo who threatened to torture and perhaps kill him. As with Mr. Abu al Qassim, the U.S. government alleged that this man was associated with the LIFG, despite his repeated denials. Because there is no independent monitoring mechanism within Libya and human rights organizations are outlawed by the government, little is known about this prisoner’s current situation. It is feared that he has been subjected to torture and abuse. The U.S. Department of State made one visit to both prisoners in 2007, but was not permitted to meet with the men outside of the presence of Libyan officials.

Nonetheless, when the Bush administration decided to release Mr. Abu al Qassim, it first attempted to send him to Libya. At the time, many cases had standing orders from the district courts granting 30-day advance notice of transfer. Because of this advance notice, CCR was able to fight the proposed transfer all the way up to the Supreme Court, but every court to consider the case ultimately refused to issue an order blocking our client’s transfer to torture in light of the Military Commissions Act of 2006’s purported removal of jurisdiction from the federal courts to hear claims by “enemy combatants.”

With help from allies at Human Rights Watch, we turned to the media. The Washington Post published a story about Abu al Qassim’s plight, and soon thereafter the State Department intervened to stop the transfer (in mid-2007).

Abu al Qassim spent the next two and a half years in solitary confinement in one of the worst facilities at Guantanamo, Camp 6, where he was confined to a small, windowless cell with no access to natural light or air. In the just under eight years he spent at Guantanamo, he received no access to medical care despite a variety of acknowledged, serious health needs.

After the Supreme Court’s landmark decision in Boumediene v. Bush, litigation began in his habeas corpus case challenging the legality of his detention. After 6 months of briefing and several hundred pages of submissions, the government agreed to release him in order to avoid a decision from the district court. After another 8 months of waiting, Abu al Qassim was finally transferred to Albania, which agreed to take him and two other detainees needing resettlement, in February 2010.

Since then CCR has been actively involved in ensuring his readjustment to civilian life, arranging for Arabic-speaking doctors with experience with trauma victims to see him, and helping him acquire a computer and, recently, a bicycle. He still has yet to see the daughter he was separated from in October 2001.

Timeline

On June 22, 2005, the Center for Constitutional Rights and pro bono co-counsel filed Zalita v. Bush, a petition for habeas corpus in the D.C. District Court.

On July 25, 2005, the district court issued an order requiring the government to provide 30 days advance notice of any intended transfer of Mr. Abu Al Qassim to the custody of a foreign government.

In December 2006, and again in February 2007, the U.S. government declared its intention to transfer Mr. Abu Al Qassim from Guantánamo to the custody of Libyan officials for the “continued detention, investigation, and/or prosecution as that country deems appropriate, consistent with the policies and practices pertaining to such transfers…” CCR attorneys quickly met with Mr. Abu Al Qassim at Guantánamo, and he reaffirmed his ongoing fear of torture and persecution by the Qadhafi regime.

On January 19, 2007, CCR filed a motion asking the court to order the government to provide 60 days advance notice before they render him to Libya in order to allow him sufficient time to prepare an application for withholding of removal from U.S. custody and to seek a court order preventing his transfer in violation of his rights under the Constitution and international treaties, including the Convention Against Torture. The court granted the motion on February 15, 2007. The government gave its 60 days notice on February 20, 2007, reaffirming its intention to transfer Mr. Abu Al Qassim to Libya despite his stated fear of torture.

On April 12, 2007, CCR filed a motion in the D.C. District Court for a temporary restraining order and preliminary injunction to prohibit Mr. Abu Al Qassim’s transfer. We argued that his transfer would be a violation of his constitutional and treaty-based rights. CCR also provided the court with a sworn declaration from Mr. Abu Al Qassim stating his fear of torture and persecution, as well as three expert declarations describing the serious risk of torture and persecution Mr. Abu Al Qassim faced in Libya and the ineffectiveness of diplomatic assurances, if any, that the U.S. government received from Libya promising to treat Mr. Abu Al Qassim humanely.

On April 19, 2007, the district court denied the motion for a preliminary injunction. The court recognized “the seriousness of the petitioner’s allegations,” but found that it had “no choice but to deny the motion” in light of the court of appeals decision in Boumediene, which stated that the Military Commissions Act of 2006 stripped the federal courts of jurisdiction over habeas and non-habeas claims by Guantánamo detainees.

The case was appealed to the D.C. Circuit Court of Appeals on April 20, 2007, but the circuit court denied Mr. Abu Al Qassim’s motion for injunctive relief and dismissed the case for lack of jurisdiction on April 25, 2007. CCR then filed an emergency application for an injunction in the Supreme Court of the United States. The Supreme Court denied the application on May 1, 2007.

While seeking relief through the courts, CCR also engaged in an international media and advocacy campaign to discourage the U.S. government from transferring him to Libya and to bring public scrutiny to his case.

On September 21, 2007, CCR filed a petition for writ of certiorari in the United States Supreme Court on Mr. Abu Al Qassim’s behalf seeking review of whether Mr. Abu Al Qassim has rights under the Fifth Amendment of the U.S. Constitution and under international human rights treaties, such as the Convention Against Torture or the 1951 Convention Relating to the Status of Refugees, that restrain the Executive from transferring a Guantánamo detainee to a human rights abusing regime where he is more likely than not to face torture.

On September 20, 2007, one day before Mr. Abu Al Qassim’s petition for certiorari was filed in the Supreme Court, the D.C. District Court dismissed Mr. Abu Al Qassim’s habeas case for lack of jurisdiction, and the government quickly moved to cut off attorney access to Mr. Abu Al Qassim. On September 25, 2007, CCR filed a motion for reconsideration of the district court’s dismissal. CCR argued that the Supreme Court’s June 29, 2007 decision to hear the appeal in the Al Odah and Boumediene cases reopened the question of federal court jurisdiction over the detainees’ habeas cases and that the Supreme Court was now poised to determine the rights of the detainees. As a result of the Supreme Court’s actions, attorney access to clients pursuant to the district court’s authority should continue until the Supreme Court determined the questions of jurisdiction and legal rights. CCR also filed a petition in the D.C. Circuit Court of Appeals under the Detainee Treatment Act on September 26, 2007 to regain access to Mr. Abu Al Qassim.

On October 5, 2007, the district court judge granted the motion for reconsideration, vacated the dismissal, stayed the case pending the outcome of Al Odah and Boumediene, and ordered that counsel access be restored. Mr. Abu Al Qassim, once again, has access to his attorneys and can pursue protections from the U.S. government’s efforts to transfer him to Libya.

In August 2008, in light of the Boumediene decision, the Supreme Court granted cert, vacated the lower courts’ denials of an injunction against Mr. Abu al Qassim’s transfer to Libya, and remanded the issue back to the lower courts. By this time the government no longer sought to transfer him to Libya.

In November 2008, the government filed its classified factual return setting forth its justification for the continued detention without charge or trial of Mr. Abu al Qassim. In May of 2009 Mr. Abu al Qassim filed his response, and in June of 2009, the parties filed their motions for judgment on the record. The government agreed to release Mr. Abu al Qassim on the day he filed his final brief in the district court.

In February 2010, Abu al Qassim was transferred to Albania. He now lives in Tirana.

Washington Post story: http://www.washingtonpost.com/wp-dyn/content/article/2007/06/14/AR2007061402095.html

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