Court, administration ignored perils to repatriated detainees

By Laurie R. Blank and Amos N. Guiora


A man goes missing in Algeria. In and of itself, this is not earth-shattering news. The reason, however, is deeply troubling. The U.S. Supreme Court and the Obama administration share the blame equally.

The Supreme Court because it chose the easy way out, relying on procedural argument; the administration because it chose to ignore clear dangers; and both, because they did so in the face of unequivocal international and domestic legal obligations.

The facts: July 16, the Supreme Court declined to stay the transfer of at least two Algerian detainees held in Guantanamo but never tried — Farhi Saeed Bin Mohammed and Abdul Aziz Naji.

On July 19, Naji was transferred to Algeria against his will, where he was promptly detained before reportedly being released late Monday. The court thus facilitated the first involuntary repatriation of a detainee who was never brought to trial.

In doing so, the court granted the administration a free pass and dealt a major blow to international human rights and international humanitarian law.

These actions will unfortunately reverberate both near and far.

First, although the Obama administration came into office vowing to abide by all international obligations — under human rights law and international humanitarian law — the transfer of detainees to Algeria raises serious concerns about its commitment to those obligations.

Second, the Supreme Court has solidified a disturbing historical tradition of deference to the executive during wartime to the detriment of individual rights.

U.S. obligations under international law are clear. The U.N. Convention Against Torture, to which the U.S. is signatory, obligates all signatories to refrain from transferring any person to a country where he or she is likely to face torture. This obligation, like the prohibition against torture itself, is non-derogable (can’t be avoided under treaty).

In March 2009, the administration stated that the international laws of war govern the detention of persons in the “war on terror.” Unfortunately, the administration’s decision to repatriate Naji strongly suggests that, from the administration’s perspective, international law is irrelevant with respect to detainees. Even when torture is the likely result of repatriation.

The Algerian detainees — cleared for release or transfer years ago — have consistently argued that they will face certain torture if sent back to Algeria. And yet, at least one of the detainees is already back in Algeria and, not surprisingly, nowhere to be found.

Notwithstanding strong evidence that these detainees are not viewed with favor in Algeria and that torture is a common practice there, the Supreme Court acquiesced to the administration in a 5-3 decision. Both thus unequivocally placed an innocent individual in harm’s way, facilitating the inevitable.

As in death penalty cases, refusing to grant a stay is within the court’s power. Unlike in death penalty cases, however, the Algerians were denied a process. By relying on procedure — rather than substantive review — the court ignored Justice Robert Jackson’s warning of 60 years ago regarding an “unfettered executive.”

Judicial review is essential in a democracy. Comparative approaches may well be inherently problematic, but the Israeli Supreme Court’s real-time judicial activism in national security cases acts as a restraint on the executive.

Although imperfect and criticized by all sides, the system institutionalizes judicial review. At a minimum, in other words, it requires the executive to articulate both decisions and rationales. The U.S. Supreme Court demanded neither here.

The Supreme Court and the administration have failed with respect to policy and process alike. Recent events reflect a disturbing and continuing failure to articulate a sustainable, legally sound policy regarding detention, including the circumstances of detainee release or transfer.

Even when international law provides direct guidance regarding the transfer or repatriation of a particular detainee, the administration chose to ignore that guidance. The court’s deference led it to acquiesce in the administration’s clear violation of our obligations under the Convention Against Torture, perhaps the ultimate failure of process here.  

It is a failure of process because extreme judicial deference undermines checks and balances. Had the court granted the stay and forced the administration to either demonstrate the reasonableness of the repatriation or seek alternative options for release, the process would have worked — the judiciary would have fulfilled its role of curbing executive excess and ensuring respect for the law, whether domestic or international.

In actuality, the administration trampled on its international and domestic obligations; sadly, the court facilitated, indeed enabled, the violation. Terrorists may pose grave danger to national security, but an unchecked executive is equally a danger to the rule of law and individual rights.

Judicial review of the executive during wartime is an essential — perhaps the essential — component of balancing the two critical goals of individual liberty and national security.

Aziz’s ultimate fate is still unknown, but hopefully the court and the administration’s future actions will not be similarly so. Time will tell; the record is not encouraging.

Laurie R. Blank is the director of the International Humanitarian Law Clinic at Emory Law School.

Amos N. Guiora is a law professor at the SJ Quinney College of Law at the University of Utah.