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From Sarajevo to Guantanamo: The Strange Case of the Algerian Six

In Boumediene v. Bush the Supreme Court will decide the fate of habeas corpus petitions, and the fate of a group of alleged Al Qaeda members who have been imprisoned at Gitmo for six years.

| Tue Dec. 4, 2007 3:00 AM EST

On a wintry evening in January 2002, a crowd of more than 150 people gathered outside Sarajevo's central jail awaiting the release of six prisoners, a group of Algerian-born men suspected of being members of an Al Qaeda cell that had plotted to bomb the U.S. embassy in Bosnia-Herzegovina's capital city. The alleged Al Qaeda members had been in custody since October, when they were rounded up by Bosnian police, but a major development in the case had arrived earlier that day, after Bosnia's highest courts issued a pair of rulings, one ordering the immediate release of the prisoners due to lack of evidence and the other preventing the men from being deported. But as the evening wore on and the men had still yet to be set free, the celebratory mood gave way to anxiety. And when, instead of releasing the men, the Bosnian special police forces arrived on the scene intending to hand the men over to the U.S. military, the peaceful gathering quickly turned into a violent confrontation. Riot police intervened and a convoy eventually managed to whisk the prisoners away.

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They would emerge in Guantanamo Bay, Cuba, where they became some of the infamous prison's first inmates. More than six years have passed since the so-called "Algerian Six" landed in Gitmo. In the intervening time, Bosnia's Supreme Court suspended criminal proceedings against the men; the country's chief prosecutor formally cleared them of the terrorism charges; and several Bosnian and European institutions have called for their release. But the Pentagon maintains the detainees are Al Qaeda operatives who continue to pose a threat to the security of the United States.

On Wednesday, in a case that will have broad implications for the Bush administration's detainee policy, the Algerian Six will finally get their day in court when the Supreme Court hears oral arguments about the legality of their detention. The case, Boumediene v. Bush, will help determine whether Guantanamo inmates can file habeas corpus petitions in federal courts—and, more broadly, determine whether the Bush administration's aggressive prosecution of the "war on terror" upended one of the bedrock legal principles of this country.

While the court's opinion will impact the legal situation of dozens of "enemy combatants," seized on the battlefields of Iraq and Afghanistan as well as snatched on the streets of Milan, it will not address the strange set of allegations that brought those six men from Sarajevo to Guantanamo.

After years of silence, several key actors have now agreed to speak out on what happened behind the scenes in Sarajevo, describing how the Bush administration, fearful of further terrorist strikes after 9/11, strong-armed a weak Bosnian government to secure the transfer of the Algerian-born detainees. The story of the Algerian Six offers an inside peek into the U.S. government's shadowy rendition program and the Kafkaesque inner-workings of the post-9/11 military tribunals, but also provides a vivid illustration of a lesser-known consequence of the war on terror: the undermining of the rule of law abroad—in this case, in a country emerging from a brutal civil war, where, ironically, the U.S. government spent years and millions of dollars to entrench Democratic principles. Moreover, an investigation into the circumstances behind the detention of the Algerian Six based on exclusive documents and interviews also raises a troubling question: Were they the victims of a mistake the Bush administration has dared not correct for fear of admitting it?

In the wake of the 9/11 attacks, "the gloves came off," as one administration official famously declared, launching an all-out effort to weed out Islamist terrorist networks around the globe. Beyond Afghanistan, Pakistan, or the Middle East, an obvious place to start the hunt was Bosnia.

For years, U.S. intelligence agencies had been keeping an eye on a handful of foreign Muslim volunteers who had arrived in Bosnia—with tacit U.S. support—to fight the Serbs alongside their Muslim brethren during the 1990s. After the U.S.-brokered Dayton Accords ended the hostilities in November 1995, some stayed on in Bosnia, often working for Muslim charities suspected of serving as terrorist fronts. When a group of individuals fitting that profile came to the attention of intelligence officials in the fall of 2001, the gloves did indeed come off. After the U.S. embassy in Sarajevo asked Bosnia's federal police to conduct a thorough investigation of several alleged Al Qaeda operatives, local authorities swung into action and quickly zeroed in on Bensayah Belkacem, who was living with his Bosnian wife and two daughters near the town of Zenica. He was arrested on October 8, on suspicion that he had used a forged Yemeni passport to enter Bosnia. In his house, investigators allegedly found a scrap of paper with the name"Abu Zubeida" and a phone number in Pakistan handwritten on it. (Abu Zubaydah, a well-known Al Qaeda operative, was arrested in Pakistan six months later.) Citing phone records and wiretaps, U.S. officials told Bosnian authorities that Bensayah placed 70 calls to Afghanistan in the months following the 9/11 attacks and had discussed passport procurement with Abu Zubaydah over the phone.

After receiving a list of additional suspects from U.S. authorities, Bosnian police discovered that one of them, Saber Lahmar, was living in the same house as his father-in-law, who happened to work as a janitor in the U.S. embassy. On October 16, U.S. intelligence reportedly tapped a conversation on Lahmar's phone, which included a coded reference to a forthcoming attack on the U.S. and British embassies in Sarajevo. The following day both missions closed, and a tense meeting between American and Bosnian officials took place. During that meeting, Christopher Hoh, the U.S. chargé d'affaires, reportedly told the Bosnian Federation's Prime Minister, Alija Behmen, that the U.S. would withdraw its personnel and cut diplomatic relations with his country if they did not arrest Lahmar and other suspected members of his cell. "If we leave Bosnia, God save your country, Mr. Prime Minister," Hoh said, according to filings by the detainee's American lawyers. (A State Department lawyer, Vijay Padmanabhan, confirmed the encounter but stressed that U.S. officials had issued no threat and had merely passed along intelligence information about the embassy plot.)

Within a week, Bosnian police detained Lahmar and four other Algerian-born men—Hajj Boudella, Lakmar Boumediene, Mustafa Ait Idir, and Mohammad Nechle—for allegedly making preparations to carry out an attack against the U.S. embassy in coordination with Abu Zubaydah, according to a Bosnian Supreme Court document.

The men remained in custody for three months during which the police conducted an in-depth probe. On January 10, 2002, the Bosnian government issued an order to expel four of the detainees, who had been stripped of their citizenship or permanent resident status in November. The next day, the Bosnian foreign ministry asked Algeria to accept the men but Algiers swiftly rejected the request, according to Bosnian court filings. Matters came to a head on January 17, when Bosnia's federal prosecutor informed the investigating magistrate at the Supreme Court that there was no evidence justifying keeping the men in jail and the judge ordered their immediate release. That same day, the Human Rights Chamber, one of Bosnia's highest courts, issued an interim order requiring the government to take all necessary steps to ensure that the men would not be forcibly deported. Meanwhile, the Bosnian government had received a request to take custody of the men from the U.S. embassy that day. Three days later the men arrived at Gitmo on a C-130, handcuffed and blindfolded.

What really happened during those crucial days before the Algerian Six were sent to Guantanamo? Wolfgang Petritsch, the international community's top official in Bosnia at the time, recalls that Bosnian leaders told him they felt obliged to comply with the U.S. request, because "the U.S. put a tremendous amount of pressure on them." Further, Petritsch claims U.S. officials conveyed to him that Washington was ready to withdraw its support for the international mission he was leading if he publicly protested the handover."If I would have protested more vocally at the time against this obvious breach of law, I believe it would have jeopardized the international mission," Petritsch said. "I had to choose." (Padmanabahn, the State Department lawyer, denied the charge. "The U.S. doesn't threaten or intimidate, that's not our style," he said.)

In addition to the clout of its embassy, Washington could also count on the presence of Americans at the helm of several key international institutions in Bosnia: the NATO-led international stabilization force in Bosnia known as SFOR, the U.N. mission, and the delegation of the Organization for Security and Cooperation in Europe (OSCE). Madeleine Rees, who represented the U.N. high commissioner for human rights in Bosnia at the time, believes this was no mere coincidence. "The U.S. abused its position within the international apparatus in Bosnia to further its foreign policy goals," she said. Both retired general Jacques Klein, who headed the UN mission, and ambassador Robert Beecroft, the OSCE's country director, vigorously denied such claims, noting that the primary responsibility for the case rested with SFOR, the multinational force headed by U.S. General John Sylvester.

Petritsch, who is now Austria's ambassador to the U.N. in Geneva, recalled confronting Sylvester about the role played in the detainee-transfer by U.S. soldiers serving in the multinational force. "He made it clear that he was not authorized to answer any questions about this case because he was not wearing an international hat but his U.S. hat," Petritsch said. "This was a deeply disturbing answer."

Sylvester, who has since retired, going on to work for a security consulting firm in Virginia, said he had no specific recollection of this conversation. Still, he explained that he was"a NATO officer but also an American general." "Our mission was to establish a safe and secure environment in Bosnia and those individuals posed a direct threat to it," he said.

Petritsch admits that this realpolitik decision dealt a blow to the international community's effort to build a state-of-the-art judiciary in the war-torn region. Its apex was the Human Rights Chamber," an American invention and a nice one," as he put it, that was created by the Dayton Accords. The chamber, comprised of international and local judges, had the authority to issue provisional orders, appoint experts, and compel the production of witnesses and evidence. All its decisions were final and binding—all of them except its January 2002 ruling ordering Bosnian authorities to block the transfer of the Algerian Six.

"Bosnia's was considered the best constitution in the world in terms of human rights" because of the broad powers bestowed on the chamber, said Manfred Nowak, a magistrate in the court who is now U.N.'s Special Rapporteur on Torture. "We were to develop the rule of law, especially habeas corpus. Obviously, this was ignored in this case."

The State Department's Padmanabhan bluntly explained that the Bosnian judicial proceedings had no bearing on the determination by the U.S. that the men were enemy combatants. He added that the U.S. government had been able to lay out its case against the Algerian Six through military tribunal proceedings set up by the Bush administration—proceedings that have been the subject of numerous court rulings and congressional bills and roundly criticized for their heavy reliance on classified and coerced evidence.

After spending more than three years without access to a legal representation, the Algerian Six were permitted visits with lawyers in early 2004. The lawyers, from the Boston-based law firm Wilmer Hale and working pro bono, subsequently made a dozen trips to Gitmo. They claim their clients are suffering from exacerbated symptoms of depression and stress disorders. In an April 2005 suit seeking records about the detainees' treatment, they contend that one of the detainees, Mustafa Ait Idir, was severely beaten on two occasions and that his face was once held under water in the toilet of his cell. Saber Lahmar, for his part, has been in isolation since last June for allegedly inciting inmates to commit suicide and go on hunger strikes.

In the summer of 2004, lawyers working on behalf of the detainees filed petitions for writs of habeas corpus in the D.C. circuit court, arguing that the men's indefinite detention without facing criminal charges was unlawful. After two district judges issued conflicting rulings, the D.C. Court of Appeals ruled in February that such petitions should be denied because the Military Commissions Act, passed by Congress in 2006, stripped the courts of oversight on habeas claims filed by Guantanamo detainees. After refusing to hear their case in April, the Supreme Court reversed course this summer and agreed to do so on Wednesday, together with a similar case, Al Odah v. Bush.

While the Algerian Six case will be closely watched on the issue of prisoners' rights, it won't delve into the circumstances behind their original arrest and detainment, even as further questions about the veracity of the evidence against the detainees have been raised in recent years. As for allegations that the men had initially intended to attack the British and U.S. embassies, the reference to the British embassy in Sarajevo as a target quickly disappeared and has never been aired again. The Foreign Office in London declined to comment through spokesman Andy McGuffie. Ian Cliff, the British ambassador to Bosnia at the time, said, "I can say only that there was a credible threat against the British Embassy in Sarajevo in 2001 emanating from the Algerian 6, as a result of which we had to close the Embassy for a few days."

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