UPDATE — July 21, 3:43pm ET: A federal judge ruled Monday that the US government is not legally obligated to return the money taken from former Gitmo detainee Djamel Ameziane when he was captured.
The Department of Defense (DOD) may be guilty of war crimes at Guantanamo Bay — but it's not because of water boarding or force feeding or indefinite detention without charge.
It's because the military is stealing wallets.
VICE News has learned that when detainees are released from the detention facility, the military refuses to return the money it seized from them upon their capture. The US argues that it keeps the money because it could be used to finance terrorism — but this would seem to contradict the US position that detainees transferred out of Gitmo aren't national security threats.
It may seem like a stretch to characterize the military's policy of withholding cash from former Gitmo detainees as a war crime, especially when compared with torture. But the laws of war — also known as International Humanitarian Law, which the US says it upholds and applies to Guantanamo detainees — forbids pillaging. And several military and human rights legal experts told VICE News this is what the policy amounts to.
“For more than 100 years, there has been a criminal prohibition in the laws of war over pillage,” said Gabor Rona, the international legal director for Human Rights First. “Most of the case law concerning pillage has to do with the obligation to return property to detainees upon their release. It could very well be a war crime."
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The previously unknown “policy,” revealed here for the first time, applies to all captives regardless of whether they were wrongfully detained, have never been charged with a crime, or have prevailed in challenging the legality of their detention in habeas corpus proceedings, according to the DOD.
In addition, the government’s policy appears to contradict the fact that the Secretary of Defense certifies that any detainee who is repatriated or transferred from Guantanamo no longer poses a threat to national security. The policy suggests that all detainees held at Guantanamo are terrorists by virtue of being imprisoned at Guantanamo, and that they therefore may engage in acts of terrorism once they leave even if they never have before.
Details of the government’s policy surfaced in the little-known court case of Algerian national Djamel Ameziane, who last December was transferred back to Algeria after being detained at Gitmo for more than a decade. The 47-year-old had never been charged with a crime.
'If you were trying to facilitate a detainee's integration into a mode of normal life rather than a life of radicalization, you would think you would want to make normal life easier rather than harder.'
Ameziane mounted a legal challenge against the US government earlier this year to try and retrieve money confiscated from him: about $1,270 he said he earned working in Canada, and a smaller amount of Afghan and Pakistani currency. He said in a sworn declaration that he is destitute and homeless, and needs the money to survive because the US transferred him to Algeria with nothing but the clothes on his back and a special Gitmo care package.
“I don't have any money to rent an apartment, and the officials from various government agencies have explicitly indicated to me that they will offer me neither financial nor housing assistance, nor… any kind of assistance whatsoever,” Ameziane said.
But the US said it couldn’t return Ameziane’s money, arguing in court documents filed in federal court in Washington, DC that doing so would pose a grave threat to national security and run contrary to the government’s policy. Joint Task Force Guantanamo “retains all money that was on a detainee’s person at the time of his capture,” Jay Alan Liotta, principal director for the Office of Rule of Law and Detainee Policy at the Defense Department, said in a sworn declaration. “The procedure to retain money associated with detainees is based on a strong national security interest in preventing these funds from being used in a manner that would adversely impact the safety and security of the United States.”
Liotta, providing some rare insight into Guantanamo’s operations, noted in his declaration that all “departing detainees” receive a “travel package” consisting of “a Koran in the detainee’s language, a blanket, clothing, and several personal care items."
“Specifically, the travel package includes two sets of clothing (pants and smocks), two pairs of underwear, prayer caps, socks, shower shoes, and slip-on shoes,” Liotta continued. “The package also contains a towel and washcloth, toothbrush, toothpaste, shaving cream, deodorant, shampoo, a razor, and a comb.”
He added that although detainees may use money seized from them for “legitimate or benign purposes, such as to purchase food or clothing,” there’s a possibility that the money could also be used to “help finance terrorist activities” and as such is “as dangerous as a weapon.”
“Due to the unprecedented and ongoing nature of the current conflict where money can be useful to a terrorist organization… the Department of Defense appropriately mitigates the threat that a detainee released from Guantanamo Bay may pose by removing from his possession any financial instruments or currency that might be used to adversely impact the safety and security of the United States,” Liotta said.
The government’s rationale does not appear to make much sense.
“We’re letting him go because he’s no longer a threat,” Rona said. “But we’re not giving back his money because he’s a threat.”
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Eugene R. Fidell, who teaches military justice at Yale Law School, said the government’s position is "a complete scandal.”
“I don’t know any district judges who wouldn’t be infuriated by this," he told VICE News. "International humanitarian law makes it perfectly clear that you have to return prisoners’ personal property at the time of release."
DOD spokesman and Army Lieutenant Colonel Myles Caggins did not share a copy of the government’s policy with VICE News when we requested it. He also declined to respond to our questions — citing ongoing litigation — about how much money the US has seized from Guantanamo detainees over the past 12 years, what the US has done with the funds, and when the policy was enacted.
Wells Dixon, an attorney with the Center for Constitutional Rights (CCR) who represents Ameziane, said he doesn’t believe such a government policy actually exists.
“I don’t think that this so-called policy is an actual policy,” he told us. “I literally think this is something that was decided by a mid-level bureaucrat at DOD who believes that everyone held at Guantanamo is a threat to the US.”
Dixon said he is seeking relief from the courts on Ameziane’s behalf through a post-transfer habeas corpus challenge, which would, if granted, upend the government’s policy. He has also invoked an Army regulation that implements certain international legal obligations governing the treatment of enemy prisoners of war, such as the return of property seized from a prisoner. But the government has argued that the Army regulation doesn’t apply to Ameziane.
“What’s important here is that the government has held his money simply on the basis of his prior detention,” Dixon said. “It has nothing to do with his actual conduct. It has to do with the fact that he was held in Guantanamo and nothing to do with any of the allegations against him."
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The college-educated Ameziane has always maintained his innocence, stating that he fled Afghanistan in the immediate aftermath of the US invasion. He was captured at the Afghanistan-Pakistan border and turned over to American forces. The military’s internal August 2008 detainee assessment report, leaked by Wikileaks, alleged that Ameziane was an “al-Qaida and Armed Islamic Group affiliated fighter who participated in hostilities against the US and coalition forces.”
But the US government never provided any evidence to back up its assertions after Ameziane filed a habeas corpus petition in 2005 challenging the legality of his detention. In 2008, the government admitted there was no “military rationale” for detaining Ameziane and cleared him for transfer back to Algeria.
However, Ameziane, who had lived in Canada and Austria and once worked as a chef before moving to Afghanistan prior to 9/11, refused to be repatriated to Algeria, a country he fled more than two decades ago to avoid the civil war that saw the persecution of ethnic Berbers like him.
'The US government has not only refused to compensate me for 12 years of imprisonment in Guantanamo, but it has seized the money I earned through my hard work.'
Ameziane’s attorneys convinced a federal judge to enjoin the Bush administration from resettling Ameziane in Algeria while they worked on finding other countries that would be willing to take him in.
When the Obama administration came into office, a Guantanamo review task force again cleared Azamiane for transfer back to Algeria and blocked his attorneys’ attempts to repatriate him in other countries, ignoring pleas from Ameziane and his attorneys that militants would target him.
US District Court Judge Ellen Huvelle subsequently said she was “appalled” at the situation during a hearing in 2009.
“I don’t know why in the world the only thing that the government can see here is Algeria,” she said. “Why they want to stand in the way of any possible, possible hope of something better for him baffles me. I think it’s our duty to try to do something about these people down there and not just say, 'Okay, go to where you came from.'”
Dixon said the Center for Constitutional Rights had made “significant progress” working with officials from other governments, like that of Luxembourg, who had agreed to take Ameziane in.
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The Obama administration would not budge, however, and forcibly repatriated Ameziane to Algeria, a move that earned the administration stinging rebukes.
On December 4, 2013, Ameziane and another Algerian detainee, Belkacem Bensayeh, were blindfolded, earmuffed, and lead out of Guantanamo and onto a C-17 bound for Algiers Airport.
“Upon arriving at Algiers Airport, I was handed over to the Second Brigade of the Air Force Border Guards, who boarded the plane, cuffed my hands behind my back, pulled my t-shirt up to cover my face — I was only wearing a t-shirt while on the plane where the temperature was very cold, and upon arriving to Algeria, the temperature was very cold as well, for me,” Ameziane said in his sworn declaration. “They brutally got me out of the plane and put me in a police car and drove me to the police station where I was subjected to a short interrogation. After they took my fingerprints and a mug shot, the IIB (Intelligence and Investigation Brigade) drove me to the GDNS (General Directorate of the National Security) where I remained until December 10.”
Ameziane said he was placed under judicial supervision and released on probation. But he doesn’t have any identification documents, does not have the right to work, has no income, and is forced to borrow money in order to take a bus to report to the court.
“I don't have any spare clothing, I have no home — my brother has agreed to offer me a temporary lodging in his small home where he lives with his six children,” Ameziane said. “The US government has not only refused to compensate me for 12 years of imprisonment in Guantanamo, but it has seized the money I had earned through my hard work in Canada."
Fidell, the military justice expert at Yale, called the whole thing mean-spirited. “To take this person’s entire net estate and just hold onto it demeans us," he said. "If one of the things you were trying to do was to facilitate this person’s integration into a mode of normal life rather than a life of radicalization, you would think you would want to make normal life easier rather than harder."
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Dixon said the declaration filed in federal court by Liotta, the DOD’s principal director for the Office of Rule of Law and Detainee Policy, lays bare a much larger problem plaguing the Obama administration: a disconnect between the White House, which has publicly stated that it intends to shutter Guantanamo and resettle detainees — the vast majority of whom have been cleared for release — and the DOD, which refuses to acknowledge that mistakes were made and still views the men as the “worst of the worst.”
Colonel Lawrence Wilkerson, who was chief of staff to Secretary of State Colin Powell, has explained why that characterization is wrong. Several years ago, he said in a little-known declaration that he was willing to testify under oath in a court of law that top Bush administration officials knew the vast majority of detainees at Guantanamo, “children as young as 12 and 13 and elderly as 92 or 93,” were innocent and were sold to the US for bounties, “sometimes as much as $5,000 per head.”
Ameziane was detained in 2002 after being sold to US forces for a bounty by Pakistanis.
“Such practices meant that the likelihood was high that some of the Guantanamo detainees had been turned in to US forces in order to settle local scores, for tribal reasons, or just as a method of making money,” he said. “I recall conversations with serving military officers at the time, who told me that many detainees were turned over for the wrong reasons, particularly for bounties and other incentives."
Wilkerson said Bush administration officials believed that “innocent people languishing in Guantanamo for years was justified by the broader war on terror and the capture of the small number of terrorists who were responsible for the September 11 attacks, or other acts of terrorism. Moreover, their detention was deemed acceptable if it led to a more complete and satisfactory intelligence picture with regard to Iraq, thus justifying the administration’s plans for war with that country."
All Ameziane can do now is wait. The government filed court papers arguing that his case should be dismissed since the court does not have jurisdiction over his claim for the return of his money. Furthermore, the government argued that Ameziane’s attempts to retrieve his money by lodging a habeas corpus claim is improper.
Dixon said the judge presiding over the case is expected to make a decision soon. The judge can either order the government to return Ameziane’s money or set a full hearing on the merits of the case, but whatever the outcome, Rona says the law is clear, and Ameziane’s case is a perfect example of how the US continues to flout it.
“The US has always claimed the Geneva Conventions don’t strictly apply to these detainees,” he said. “But anytime the US wants to justify policies concerning detention it calls upon the laws of war, which are the Geneva Conventions. Anytime the Geneva Conventions are of a benefit for detainees, the US says Geneva doesn’t apply. We have said they can’t have it both ways — but they can because no one will make them do otherwise."
Follow Jason Leopold on Twitter: @JasonLeopold