US judge block Gunatanamo transfer due to risk of torture

According to the AP via Findlaw a US federal judge has issued an injunction blocking the transfer of a Gunatanamo Bay detainee to Tunisa because of the risk he might be tortured there.

"The order by U.S. District Judge Gladys Kessler was unprecedented as a direct intervention in the case of a prisoner at Guantanamo Bay, where some 330 men accused of links to al-Qaida or the Taliban are held, according to a human rights group and the detainee's lawyers.

"This is the first time since Congress tried to strip court jurisdiction over detainees that a court stepped in and said to the administration, 'Hey wait. You can't do what you say you want to do,'" said Jennifer Daskal, senior counterterrorism counsel for Human Rights Watch...

Cynthia Smith, a Department of Defense spokeswoman, said the United States tries to ensure that repatriated detainees are not abused.

"Detainees are not repatriated to countries where it is more likely than not that they will be tortured," she told AP in an e-mail. "We take steps to ensure that mistreatment of detainees doesn't happen and upon hearing allegations of mistreatment, we investigate before initiating future transfers to that state."

But Human Rights Watch said last month that Tunisian authorities broke a pledge not to mistreat two former Guantanamo detainees who were sent home nearly four months ago. The group cited lawyers for Abdullah bin Omar and Lotfi Lagha as saying the two men were held in solitary confinement and mistreated - despite assurances by the Tunisian government to the United States that the two would not be harmed."

It's good to see a federal judge applying the rule of law in the face of the Bush administration's sophistry and unconscionable stance on torture. Brian Tamanaha and David Lubin have some further thoughts on the US and torture over at Balkanization - essential reading for anyone considering the issue seriously . Yet again we are reminded that for evil to triumph it only requires that good people do nothing. Lubin says:

"Now we know about the existence of two hitherto-unknown Office of Legal Counsel memos on torture and cruel, inhuman and degrading treatment (CID for short) – what Jack has called Torture Memos 2.0 and 3.0. Reportedly, number 2.0 approves specific harsh techniques used by the CIA, while 3.0 finds that no technique used by the government is CID. (If it was, the Detainee Treatment Act would prohibit it.)

My subject here is Torture Memo 3.0, and my question is whether we should be surprised. The answer is no, because the Justice Department already told us that no interrogation tactic can possibly be cruel, inhuman, and degrading. In some sense, the only surprise is that Congress now acts surprised. Why the outrage now? DoJ told them its position more than two years ago, in a letter to three Democratic Senators...

...in an important sense, we have known for two years that, in the government’s view, nothing it does to obtain terrorist information counts as cruel, inhuman, or degrading. Even if Torture Memo 3.0 uses a different argument than Moschella’s, it can’t reach a more radical conclusion. So where is the surprise?

Perhaps it’s here: we might have thought that the OLC had cleaned up its act after the Bybee Memo embarrassment. Obviously it didn’t. Apparently, after Jack Goldsmith’s departure, it returned to its previous posture of blessing anything the Administration wants blessed, just the opposite of the candid and independent advice that ethical lawyers are supposed to deliver to their clients. That, as much as the government’s position on CID, is the real disgrace. The OLC issues opinions that are, by custom if not law, binding on the executive branch, so this is not simply legal advice – it’s the equivalent of a secret D.C. Court of Appeals decision.

So now the senators are shocked, shocked that gambling is going on in the establishment. Maybe it’s time to start looking at the establishment itself. Is there anything that can be done to restore respectability to the Office of Legal Counsel?"
Tamanaha:

"the Bush Administration is insisting publicly, loudly, indignantly, that the U.S. does not engage in “torture.” Were it only true.

What we have engaged in, as has been reported by many sources (see anti-torture memos at this site), is “alternative procedures,” which include water boarding, exposure to very cold temperature, and forced standing for hours on end. Robert Conquest, a venerable sovietologist and favorite historian of conservatives, who Bush awarded the Presidential Medal of Freedom, called these (USSR) tactics "torture," stating that "Torture is...a worse crime against humanity than killing.” If these sorts of actions were “torture” when the Soviet Union engaged in them, they are “torture” when we do them.

Deny, Deny, Deny. Hide behind a silly legalistic argument about the meaning of “torture.” But it doesn’t change what we did. [I optimistically use the past tense].

The victims of atrocities must not be erased."