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To the Shores of Tripoli...

Gabe Rottman,
Legislative Counsel,
ACLU Washington Legislative Office
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May 2, 2007

The Supreme Court refused yesterday to block the transfer of Abu Abdul Rauf Zalita, a Gitmo detainee, to his home country of Libya, where he contends he will be tortured by the Quaddafi regime for belonging to a group opposing the good Colonel.Couple of interesting points on this story. First, Zalita had challenged his transfer on a number of grounds, including various international treaties barring torture. The Court, however, appears to have refused to block the transfer without any dissent (or at least without any public dissent). Very curious. Second, Solicitor General Paul D. Clement argued that the Supreme Court would never be able to hear an appeal from Zalita because of the MCA court stripping provisions. That just underscores the desperate need for a legislative fix.Third, and this is particularly key, the legal standard the government appears to have applied in determining whether Zalita will face torture on his return to the Barbary Coast is “more likely than not,” which, for those not versed in the ridiculously vague bizarro world of quantifying legal standards, comes down to a 50-50 chance.In other words, if there’s a 49 percent chance that you’ll be tortured upon your return to, um, Libya, the transfer is totally kosher.Here’s the relevant section from SCOTUSblog:

Clement sought to reassure the Chief Justice, however, that no detainee will be transferred if the U.S. government “believes it is more likely than not that the individual will be tortured.” That is for the government to decide, he added.

This reminds me of another story from a ways back, where our beleaguered attorney general changed his tune on the legal standard the government would apply in determining whether to “render” a detainee to a country known to use torture. Check out the discrepancy:

U.S. officials have privately described the threat of rendition as a powerful tool in prying loose information from suspects who fear torture by foreign countries. But Gonzales, speaking to reporters at the Justice Department yesterday, said that U.S. policy is not to send detainees “to countries where we believe or we know that they’re going to be tortured.”That represents a slight modification of his congressional testimony in January that renditions would not be made to countries where it is “more likely than not” they will be tortured. Gonzales added yesterday that if a country has a history of torture, Washington seeks additional assurances that it will not be used against the transferred detainee.At the same time, he said, the administration “can’t fully control” what other nations do, according to accounts of his remarks by wire services. He added that he does not know whether countries have always complied with their promises.

Three points. First, so, what’s the deal SG Clement? If there’s a 49 percent chance that a person will be tortured upon their return, the transfer is copacetic? Second, that’s kind of messed up. And, third, the country in question is Libya! Last I checked, Libya wasn’t winning any international human rights awards. In point of fact, wasn’t it a serious outlaw nation, responsible for some horrific terrorist attacks against Americans, until it saw the writing on the wall and made a deal with the Bush administration?All in all, this foul-smelling broth of rendition, transfer, torture and MCA court-stripping reduces to one common reduction—Congress needs to act, like, soonish.

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