Judge blocks transfer of detainee

WASHINGTON – A federal district judge has ordered the government not to transfer a Tunisian detainee held at Guantanamo Bay, Cuba, to his home country, over fears that he would be tortured or killed.

The move marks the first time a court has prevented U.S. officials from making such a transfer and is the first ruling in favor of an individual detainee’s rights at the detention facility since Congress restricted court oversight of the detainees.

Judge Gladys Kessler of the U.S. District Court for the District of Columbia ruled last week that Mohammed Abdul Rahman cannot be sent to Tunisia because he could suffer “irreparable harm” before the Supreme Court rules in a landmark case that could give him access to U.S. courts. Her decision was unsealed Tuesday.

Rahman’s case underscores the challenges facing the Bush administration as it seeks to transfer so-called enemy combatants out of Guantanamo Bay and to the custody of their home nations as part of an effort to close the facility. Acknowledging the taint that Guantanamo has internationally, U.S. officials have long been seeking to send detainees elsewhere, relying on diplomatic agreements that the recipient countries will not mistreat them.

While President Bush and other officials have publicly stated their desire to close the facility, the administration has engaged in heated internal debates and has failed to come to consensus on how to do so as well as on the fate of the detainees who would need to remain in custody. Guantanamo’s population has been slowly dwindling as U.S. officials have negotiated the transfer of hundreds of detainees to their home nations.

But some detainees would rather remain at Guantanamo than face possible torture or death at home and have begun to challenge their departures in U.S. courts. Rahman is the first detainee to succeed in that effort. Two other detainees recently sent to Tunisia have reported that they were abused and tortured there.

The Rahman decision could lead to similar requests from detainees facing transfer to countries with spotty human rights records, possibly putting the U.S. government in the difficult position of having to hold people at Guantanamo indefinitely even after the military has cleared them for transfer or release. It also shows the court’s willingness to accept jurisdiction over such claims, at least until the Supreme Court rules in Boumediene v. Bush, which could grant detainees habeas corpus rights, or the right to challenge their detention in U.S. courts.