Pentagon repatriates Algerian

The Miami Herald
by Carol Rosenberg
January 6, 2011

The Pentagon Thursday sent home from Guantánamo an Algerian captive who feared repatriation, even as the White House grapples with new congressional restrictions on releases from the prison camps in southeast Cuba.

The release of Saed Farhi, 49, reduced the number of prisoners at the Navy base to 173 just days before the controversial prison camps start their 10th year.

In Farhi's case, U.S. District Judge Gladys Kessler ordered his release Nov. 19, 2009, in an 80-page ruling that found Justice Department lawyers didn't prove he had joined either al Qaeda or the Taliban while in South Asia.

His lawyers asked that he be resettled elsewhere, like other Guantánamo captives, because he feared Islamic extremist violence in his native Algeria. He also feared government retaliation for the stigma of having been held at Guantánamo, even though he had been cleared.

"Guantánamo was horrible but his fear of Algeria was even greater,'' said Boston attorney Jerry Cohen on Thursday, soon after the Defense Department revealed his client's repatriation.

Farhi had spent most of his years at Guantánamo in a steel and cement cell in a maximum security lockup, Cohen said, and was only moved to an open-air communal living arrangement after Judge Kessler ordered him freed.

The Algerian, Kessler said, "may well have started down the path toward becoming a member or substantial supporter of al Qaeda and/or the Taliban, but on this record he had not yet achieved that status.''

He had spent most of his years at Guantánamo in a solitary cell at the maximum security Camp 5, Cohen said, but was moved to open air communal living after Kessler's release order in late 2009.

"He had a lot of anxiety about Algeria. He definitely did not want to go back. He said, in our court papers, `I'd rather spend the rest of my life in Guantánamo rather than be repatriated to Algeria.' ''

The U.S. Supreme Court in July declined to block the transfer. Now his return appeared to derail a potential separate Supreme Court case on whether a federal judge has the authority to investigate State Department assurances that a repatriation would be safe.

Farhi's attorneys had wanted Kessler to question President Barack Obama's chief diplomat in charge of closure, U.S. Ambassador Dan Fried, on the potential for a safe return. Farhi fled Islamic extremism there in the 90s and had kicked around Europe as an itinerant laborer before his post-9/11 capture in Pakistan.

The Justice Department argued that a judge cannot infringe on the president's foreign policy powers.

In the end, it was Fried's State Department unit that carried out the diplomatic arrangements for this week's return. It was the first departure of a war prisoner from Guantánamo since the State department arranged for the resettlement of two Arabs in Germany in mid September.

The Pentagon also sent Farhi home as the White House is deciding what to do about Congress' tough new restrictions on the administration's effort to empty Guantánamo's prisons.

One new rule forbids the government from using public money to bring Guantánamo captives to federal court, a measure meant to limit trials to the Military Commissions in Cuba.

Another requires Defense Secretary Robert Gates to certify that the United States had taken ``all necessary steps'' to ensure that a released captive could not return to the battlefield.

Some Obama advisors suggest the president may issue an Executive Order declaring that Congress oversteps its powers by trying to pick prosecution venues.

Thursday, Sens. Jeff Sessions of Alabama and Chuck Grassley of Iowa, both senior Republicans on the Senate Judiciary Committee, said any effort to have civilian trials would ``defy the public will in furtherance of an unwise policy'' and ``attack Congress' fundamental constitutional authority to authorize funds.''

``Foreign terrorists, captured on foreign soil, should not be brought to America for civilian trial,'' the men said. ``In 2006 and 2009, Congress passed legislation to formally establish these commissions, and funded construction of a courthouse in Guantánamo Bay where these trials can be safely and securely held.''

The new rules are in legislation that Obama has until Monday to sign.

A Pentagon spokeswoman said Farhi was sent home after an Obama Task Force reviewed his file and the administration notified Congress of the move.

``The United States is grateful to the Government of Algeria for its willingness to support U.S. efforts to close the Guantánamo Bay detention facility,'' a Pentagon statement said. ``The United States coordinated with the Government of Algeria to ensure the transfer took place under appropriate security and humane treatment measures.''

Farhi has been identified in court and Defense Department documents as Farhi Saed bin Mohammed.

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