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

In <i>Boumediene v. Bush</i> 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.

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.

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."

Court filings and intelligence reports, along with interviews with judges, lawyers, and former officials suggest that the embassy claim was built primarily on three pieces of evidence gathered through phone surveillance: Bensayah's 70 calls to Afghanistan after 9/11, wiretaps of his conversations with Abu Zubaydah, and Lahmar's "coded" chat about the embassy plot. Though Bosnian authorities requested transcripts of those phone intercepts days after members of the Algerian Six were detained, the U.S. government never provided them. And there is reason to believe that at least some of the evidence used to justify the continued detainment of these supposed terrorists is dubious at best.

According to sources privy to an analysis of Bensayah's phone records, he never called the number scribbled on the piece of paper bearing the name "Abu Zubeida" that was found in his home, nor did he place 70 calls to Afghanistan. Rees, the former U.N. rights commissioner, said one of her aides had examined phone records of all the men's land lines and cell phones and found no trace of such calls. Further, Nermina Pivic, Bensayah's Bosnian counsel, said she has seen a letter from the U.S. embassy dated October 19 informing the Bosnian Supreme court that a check of the phone number found in her client's home against a terror database had not yielded any result.

Interestingly, Bensayah's so-called "charge sheet," which collates the unclassified U.S. allegations against him, makes no reference to the wiretaps, merely stating that he was in possession of phone contacts of Al Qaeda members in Afghanistan and "the international extremist Sunni network."

More broadly, as they have repeatedly pointed out, the five arrested in late October did not flee after they learned of the arrest of their alleged ringleader, Bensayah, ten days earlier—hardly the attitude of a terrorist cell about to be rolled up. In addition, while Saber Lahmar was nabbed, his father-in-law who worked as a janitor at the U.S. embassy was never prosecuted—a strange fact if he was part of the alleged plot. In recent filings, Lahmar's lawyers have further called the evidence against their client into doubt. They claim that the detainee's ex-brother in law, who is currently behind bars in Bosnia for allegedly carrying out a car bombing, fed damaging information on the group to U.S. intelligence officials, in an effort to both barter his way out of jail and lash out at Lahmar over his messy divorce.

U.S. officials counter that annual military review boards upheld the men's enemy combatant status in 2005 and again in 2006. Sylvester, the ex-SFOR commander, said the evidence against the men which he had personally seen, but could not discuss in detail because of its classified nature, was "very conclusive" and showed they were plotting "a series of nefarious acts, including the embassy attack."

Those "very conclusive" claims, however, do not figure prominently—if at all—in the men's charge sheets. And in their depositions before military tribunals, each of the detainees stressed that they were never questioned about the embassy plots.

In his October 2004 testimony, Lahmar said he began asking his captors "on his first day in Cuba" to question him about the embassy plot. "They tried to avoid asking me questions regarding that matter. On occasion, they told me they knew I didn't attempt to blow up the embassy, they only brought me to Cuba for information." He said that eventually an interrogator "told me he wanted to tell me things he hadn't told me before. They didn't want to interrogate me about the night of the embassy because that information wasn't contained anywhere in my file. He went on to say he'd hope I would forget about the matter."

Instead, the charge sheets focus on the men's alleged ties to Al Qaeda and Muslim charities. They assert that the Algerian Six were members of an Al Qaeda-linked cell active in Bosnia and that the men were planning to travel to Afghanistan at the time of their arrest in the fall of 2001, presumably to fight against the U.S. military. The men have forcefully denied the allegations, stressing that they are law-abiding individuals who did not even know each other—until, that is, they found themselves en route to Guantanamo.

"The Pentagon is always looking for new claims as the old ones evaporate," said the lead defense lawyer for the Algerian Six, Stephen Oleskey, who has access to the classified allegations against them. "If you keep people locked up, you have to show the world reasons to do so…. If they have something against them, why is the ground shifting all the time?"

Some allegations on the charge sheets are indeed puzzling. For instance, the Pentagon contends the men are tied to a terrorist organization called the Armed Islamic Group of Algeria. Yet, the secular Algerian government, which has waged a campaign of brutal repression against the Islamic group since the early 1990s, would have jumped at the opportunity to nab some of its operatives. Instead, Algerian authorities have called for their release. (The Algerian embassy in Washington declined comment.)

As the Gitmo proceedings indicate, the main focus of interrogations of the Algerian Six was to gather information about Muslim charities often suspected by Western intelligence agencies of serving as fronts for terrorist networks. In his October 2004 deposition, Mustafa Ait Idir said that when he mentioned the embassy plot, "the interrogator told me to forget about this… the interrogator told me I was there to give up information about Bosnia, and information about the Arabs living in Bosnia, and the rescue organizations that are present in Bosnia."

With the exception of the alleged ringleader Bensayah, all the prisoners had worked for such organizations in Bosnia since the early to mid-1990s, after spending time at Islamic universities or charities in Pakistan, Saudi Arabia, Yemen, the Philippines, or Albania. More importantly, their employers were often suspected of doubling as terrorist fronts. For instance, at the time of their arrest three of the Algerian Six were working for Muslim NGOs that were fingered for their extremist ties in a CIA report from 1996.

During a March 2002 police raid on the Sarajevo offices of one such NGO, the Illinois-based Benevolence International Foundation (BIF), investigators unearthed a computer file titled "Ossama's history" with documents seemingly describing the founding and early days of Al Qaeda in the late 1980s in Afghanistan, including correspondence between operatives about funding, training, and weapons, some possibly authored by bin Laden himself. U.S. prosecutors used what they called this "treasure trove" as evidence in a major case brought in 2002 against BIF and its former director Enaam Arnaout in Chicago for alleged ties to Al Qaeda. The trial ended in early 2003 with a plea bargain in which Arnaout copped to a single racketeering charge.

One of the Algerian Six, Hajj Boudella, worked for BIF in Pakistan and, as of 1992, in Bosnia. He claims he was taking care of orphans, but the U.S. asserts that he was dispatched by Al Qaeda to fight in Bosnia.

Given these suspicious ties, which lawyers for the Algerian Six deride as guilt by association, Bosnia's willingness to hand the men over—and rid themselves of potential troublemakers—is no surprise. Nor is the country's lackadaisical efforts to secure their release, despite a series of court rulings and resolutions from Bosnia's parliament, the Council of Europe, and the European parliament urging Sarajevo to do so—not to mention Bosnia's acknowledgment last June to the Council of Europe that it had indeed breached the European Convention on Human Rights by participating in the extrajudicial transfer of the Algerian Six.

Bosnia's only formal attempt to free the Algerian Six is a February 2005 letter sent by then-Prime Minister Adnan Terzic to Secretary of State Condoleezza Rice, which she rejected a month later, claiming the men "still possess important intelligence data" and pose a security threat to the U.S.

Indeed, Bosnian authorities don't want them back. "We would like them to go back to Algeria," said foreign minister Sven Alkalaj. This is precisely what the Bush administration has been trying to arrange. But it faces a difficult dilemma. Given Algeria's initial protest against their transfer, the men could be set free upon their return. And if they were put behind bars on their return to Algeria, the U.S., already blamed for mistreating the Algerian detainees in Gitmo, could face additional criticism for shipping them to a country with a less-then-sterling reputation when it comes to prisoners' rights. Their lawyers, who filed a complaint with the European Court of Human Rights in April, hope increased European scrutiny, combined with a more assertive Congress and Defense Secretary Robert Gates' apparent willingness to shut Gitmo down, will hasten the men's liberation. Such an outcome, however, could lay bare an inconvenient truth for the Bush administration— that the basis for the six-year detainment of the Algerian Six may rest on dubious evidence.

At his military tribunal in October 2004, Mustafa Ait Idir described his predicament (and, potentially, the Bush administration's), recalling an occasion when he asked one of his interrogators about the accusations and evidence against him. "The interrogator said to me that they would find something, meaning I could not be released from Cuba without them finding some accusation against me," Ait Idir said. "I could not have been held in Cuba in prison ...then all of a sudden be found innocent and released. The interrogator stated there was a big problem and they could not release me and say I was innocent because the Bosnian Embassy was told there was classified evidence against me. So if I were released, the Bosnian government would ask for the classified evidence."