1. Information about the impact of indefinite detention on Mr. Ameziane

43. It is undisputed that Mr. Ameziane was held in U.S. custody from January 2002 to December 2013, during which time he was neither charged with a crime nor had the legality of his detention determined by a judge. In particular, from 2008 to 2013, he was approved for transfer (see infra section D.2)—that is, the State conceded in domestic proceedings that it had no cause to continue to detain him and claimed to be seeking his transfer to another country—but he remained incarcerated at Guantánamo as the State failed to transfer him expeditiously.

44. Mr. Ameziane stated: “To make matters worse, the US government went to court to stop my lawyers at CCR from telling anyone I had been approved for transfer by either administration [which frustrated, among others, attempts to resettle him]. […] [T]he US cleared me for transfer, but did everything in its power to keep me in detention and keep secret from the outside world my cleared status.”Footnote ⁶⁰

45. Mr. Ameziane stated: “[The U.S.] did nothing, which was quite obvious to those of us who remained in detention […] We saw and felt no progress. It was extremely depressing […] It was this inaction, too, that caused the outbreak of a hunger strike at the prison in April 2013.”Footnote ⁶¹ This, in light of the fact that the Special Envoy for the closure of Guantánamo was reassigned and not replaced in January 2013; transfers had long since ceased due in part to restrictions imposed by the Congress; detainees’ cases were not advancing in the federal courts, and detainees perceived that “they were facing a dead end.”Footnote ⁶² He continued:

46. In this regard, the IACHR has previously noted that while the hunger strikes at Guantánamo are an important issue in and of themselves, they are fundamentally a symptom of the unsustainable situation of indefinite detention.Footnote ⁶⁵

47. Petitioners argued to the D.C. District Court in 2013 that Mr. Ameziane's case is particularly galling because the U.S. failed to take any steps between 2009 and 2013 to secure Mr. Ameziane's safe transfer from Guantánamo, despite petitioners’ efforts to secure his resettlement during this time:

48. Petitioners further argued in these domestic proceedings that “[t]he knowledge that [Mr. Ameziane] is not being released despite his approval for transfer, and despite the fact that certain governments have indicated interest in possibly resettling him, is particularly cruel, inhuman, and degrading, rising to the level of a violation of Common Article 3 of the Geneva Conventions.”Footnote ⁶⁷

49. The risks to detainee health and to the U.S.’ ability to comply with its humane treatment obligations under Common Article 3 posed by indefinite detention have further been established by internal reviews carried out by the Defense Department. It concluded:

50. The IACHR has previously considered the severe and lasting physiological and psychological damage caused by Guantánamo detainees’ high degree of uncertainty over basic aspects of their lives, including whether or when they will be tried; whether or when they will be released; and whether they will see their family members again. This continuing state of suffering and uncertainty causes stress, fear, depression, and anxiety, and affects the central nervous system and the cardiovascular and immune systems.Footnote ⁶⁹ Detainees being held indefinitely “very commonly have sleep problems, anxiety attacks, [as well as] any number of physical ailments that are attributable to an aging population.”Footnote ⁷⁰ In this respect, “the aging population at Guantanamo is vulnerable to developing debilitating neuropsychiatric disorders secondary to trauma and stress and suffering with dementia, serious depression, and increasing emotional instability.”Footnote ⁷¹

2. Additional information about interrogations at Guantánamo Bay

51. The Commission has previously considered the existence of a pattern or practice in the use of torture and other CIDT for the purposes of interrogation at Guantánamo, placing special emphasis on the express authorization of many interrogation practices by the Secretary of Defense, including the use of stress positions, isolation, sensory deprivation, forced shaving and nudity, deprivation of basic hygienic accessories and exploitation of detainees’ fears (such as fear of dogs),Footnote ⁷² as well as beating, deprivation of food and water, sexual humiliation, exposure to loud music, threats of firing squad, electric shocks, dousing with chemicals, and disproportionate use of force in searches and for minor disciplinary offenses, among others.Footnote ⁷³

52. In light of the torture he alleges, Mr. Ameziane has questioned the validity of all information contained in his administrative review (“CSRT” and “ARB”; see infra section D) proceedings from 2004–2006. He stated: “I do not remember making any statements to support any of the accusations against me. If I said anything, it was out of fear and only as a result of torture and other abuse. My words were intentionally altered by the interrogators who took the liberty to write what they wanted; they were modified by the interpreters with whom I worked, who spoke Middle Eastern dialects that are completely different from my Algerian dialect; I would even say they were altered by the CSRT and ARB processes. I am not going to go into the question of [these processes’] legitimacy because enough has been said […] even by former members of these commissions to the American media. They are at once the jailer, the judge, the jury and the executioner. I reject the charges.”Footnote ⁷⁴

53. In its response to the IACHR's report Toward the Closure of Guantánamo, the U.S. government indicated a number of investigations undertaken by the Armed Forces that generated hundreds of recommendations to improve detention and interrogation operations; the Department of Defense and the CIA have allegedly instituted processes to address these recommendations.

3. Information about medical care at Guantánamo Bay

54. Mr. Ameziane indicated that he has developed a number of physical ailments relating to his conditions of detention and treatment in Guantánamo, including a deterioration in his vision related to his years in solitary confinement, rheumatism in his legs, and post-traumatic stress disorder and depression, all aggravated by lack of adequate and timely medical care.

55. Petitioners provided several additional examples of inadequate medical care:

56. The State, for its part, alleged in general terms that “[d]etainees receive timely, compassionate, quality healthcare and have regular access to primary care and specialist physicians;” that healthcare providers “approach their interactions with detainees in a manner that encourages provider-patient trust and rapport;” and that healthcare provided to detainees “is comparable to that which U.S. service personnel receive while serving at [Guantánamo].”Footnote ⁷⁶ Furthermore, healthcare personnel “are held to the highest standards of ethical care and at no time have been released from their ethical obligations. Medical care is not provided or withheld based on a detainee's compliance or noncompliance with detention camp rules.”Footnote ⁷⁷

57. The IACHR has previously considered information regarding a variety of problems in the provision of health care at Guantánamo. Perhaps most disturbing, it has considered that “by participating in the interrogation teams, psychiatrists, psychologists and physicians, have fully disrupted the patient-doctor relationship.”Footnote ⁷⁸ Second, despite the State's affirmations that detainees receive a similar standard of care as U.S. personnel at Guantánamo, the IACHR has considered that detainees’ healthcare needs are materially different, as they have difficult problems that are not commonly seen in military medicine.Footnote ⁷⁹ Moreover, the symptoms of post-traumatic stress disorder require professional treatment to abate, and “there is no evidence that the detainees have received effective treatment for their conditions.” Accordingly, “the severe psychological trauma stemming from their experience in U.S. custody has often not been diagnosed nor addressed by the medical staff.”Footnote ⁸⁰ Furthermore, there is high turnover as front-line clinicians rotate every 7 to 9 months, and the clinic at Guantanamo does not have the facilities to evaluate and treat people with more serious illnesses.Footnote ⁸¹

58. In this regard, U.N. experts have also considered reports that “(i) the conditions of confinement [at Guantánamo] have had devastating effects on the mental health of the detainees, (ii) the provision of health care has been conditioned on cooperation with interrogators; (iii) health care has been denied, unreasonably delayed, and inadequate; (iv) detainees have been subjected to non-consensual treatment, including drugging and force-feeding; and (v) health professionals systematically violate professional ethical standards, precluding the provision of quality health care for detainees.”Footnote ⁸²

4. Information about interference with religious practice and religious abuse

59. Mr. Ameziane described numerous instances of religious abuse, discrimination, insults, and interferences with his religious practice, as well as structural interferences with his ability to practice his religion while in U.S. custody. Likewise, he alleged that confinement in the prison at Guantánamo itself was a form of religious discrimination, as all of the nearly 800 men and boys held there over the years were Muslim.

60. At Kandahar airbase in Afghanistan, Mr. Ameziane described “desecration of the Qur'an during guards’ daily searches of prisoners’ cells, for example, by throwing the holy books on the ground, stepping on them, or ripping their pages and throwing them away. On one particular occasion, a soldier brandished a Qur'an in his hand for all the prisoners in the vicinity to see, and then plunged it into a tank full of excrement into which the prisoners’ toilet buckets had been emptied. Following this incident, the prisoners decided to return their Qur'ans to the camp authorities so as to prevent further abuse, but the authorities refused to take them back.”Footnote ⁸³

61. Petitioners described “one occasion when during dawn prayer, a guard began howling like a dog in imitation of the ritual Muslim call to prayer. When Mr. Ameziane asked the guard why he was imitating the call, the guard came over to his cell and threw water in his face. A few minutes later, Mr. Ameziane was taken to solitary confinement, where he was held for five days. He was told it was punishment for throwing water at the guard.”Footnote ⁸⁴ Additionally, while in the “Romeo” and “Mike” blocks of Camp 2 and 3, “Mr. Ameziane suffered routine abuse and disruptions. Guards would yell insults and obscenities at him while he prayed and sometimes throw stones at the metal grill window of his cell.”Footnote ⁸⁵

62. In solitary confinement in Camp 6, Mr. Ameziane's “conditions of isolation create[d] a structural interference with his religious practice. Since he and his fellow prisoners can only pray in their separate, individual cells, they cannot see or hear their prayer leader well enough to pray communally.”Footnote ⁸⁶

63. In addition to incidents described in other sections of this report, Mr. Ameziane “witnessed acts of abuse against his fellow detainees. He has seen prisoners punished by having their eyelids and eyebrows, beards, mustaches, and hair completely shaved, or the shape of a cross or a soccer ball on their heads[, as well as] incidents where soldiers have desecrated prisoners’ Qur'ans, for example, by spraying water on them, trampling on them, or scrawling obscenities into them.”Footnote ⁸⁷

64. The IACHR has previously discussed religious and cultural competence issues at Guantánamo, including the lack of a Muslim Chaplain; concerns about whether all food provided to detainees is halal; the ability of detainees to pray and practice their religion communally; structural and particular interferences with the practice of religion at Guantánamo; and incidents of religious abuse, including desecration of the Qu'ran.Footnote ⁸⁸

5. Information about the impact of his time in U.S. custody on Mr. Ameziane and his family

65. Mr. Ameziane's father passed away while he was in Guantánamo; he learned of his death while he was in solitary confinement in Camp 6. Mr. Ameziane stated, “I urge you to think about [how you would feel]. You would be crushed and devastated as I was, and you would hope to die as I once did in that awful place.”Footnote ⁸⁹ Likewise, “[h]is brothers and sisters have had wedding ceremonies he has been unable to attend and have had children who have never known their uncle […] letters sent from his family often do not reach him until years later.”Footnote ⁹⁰ Ultimately, Mr. Ameziane “was denied meaningful contact with his family for over eleven years, and additionally was deprived of starting his own family and developing his own personal life.”Footnote ⁹¹ Petitioners stated that “it was not until March 2008 that the [Defense Department] announced that it would allow detainees an hour-long telephone call up to twice a year to a family member.”Footnote ⁹² Petitioners alleged that “the stigma of being labeled an “enemy combatant” and “terrorist” has damaged his and his family's good name and reputation, and has continued to harm him after his release.”Footnote ⁹³

66. Mr. Ameziane told the Commission:

1. Legal framework and developments, 2002–2009

67. As discussed above in section A, in the months and years after the 2001 terrorist attacks, the Executive (and later, the Legislative) Branch sought to ensure that detainees of the “war on terror” were beyond the legal reach of the Geneva Conventions, the habeas jurisdiction of the federal courts, and, in general, the jurisdiction of any domestic, foreign, or international tribunal.Footnote ⁹⁵ The legal uncertainty around the jurisdiction of U.S. federal courts to hear habeas corpus petitions—that is, the right of detainees to challenge the legality of their detention before a judicial authority—gave rise to years of litigation of the issue.Footnote ⁹⁶ In a first major decision, the Supreme Court held in June 2004 in Rasul v. Bush that Guantánamo detainees can legally challenge their detention in U.S. courts, because Guantánamo Bay is subject to the U.S.’ “plenary and exclusive” jurisdiction.Footnote ⁹⁷ Following this ruling, more than 200 habeas petitions were filed on behalf of more than 300 Guantánamo detainees before the U.S. District Court for the District of Columbia (“D.C. District Court”).Footnote ⁹⁸

68. In response to this ruling, the Department of Defense announced the creation of Combatant Status Review Tribunals (CSRTs), followed by periodic Administrative Review Boards (ARBs), as a purported substitute for habeas corpus to determine whether detainees are actually “enemy combatants,” and whether they continue to pose a threat to the U.S. The CSRTs were widely condemned, including by the Supreme Court, for failure to adhere to even minimal due process guarantees.Footnote ⁹⁹ In this regard, the Commission has previously considered that the CSRTs were not an adequate substitute for judicial review, concluding that “it remains entirely unclear from the outcome of those proceedings what the legal status of the detainees is or what rights they are entitled to under international or domestic law.”Footnote ¹⁰⁰ U.N. experts likewise expressed concern that “[i]n determining the status of detainees, the CSRT has recourse to the concepts recently and unilaterally developed by the [U.S.] Government, and not to the existing international humanitarian law regarding belligerency and combatant status.”Footnote ¹⁰¹ Mr. Ameziane, for his part, described the CSRT process saying “They are at once the jailer, the judge, the jury and the executioner.”Footnote ¹⁰²

69. Additionally, the U.S. Congress passed the Detainee Treatment Act (DTA) in December 2005, which expressly stripped federal courts of jurisdiction over any new Guantánamo habeas petitions and created a purported substitute remedy which consisted of review by the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit Court of Appeals”) of whether the military conducted the CSRTs in compliance with the procedures established for CSRTs.Footnote ¹⁰³

70. In June 2006, the Supreme Court ruled in Hamdan v. Rumsfeld that the military commissions established by the November 2001 Military Order violate U.S. and international law, and held that Common Article 3 of the Geneva Conventions (“at least”) applies to the trial of Guantánamo detainees by military commission.Footnote ¹⁰⁴ In response, the U.S. Congress passed the Military Commissions Act (MCA) in September 2006, which authorized a new system of military commissions by statute, and expressly stripped the federal courts of jurisdiction to hear habeas or “any other” claims by Guantánamo detainees or any other individual captured after September 11, 2001, held as an “enemy combatant” in U.S. custody anywhere in the world.Footnote ¹⁰⁵

71. Finally, on June 12, 2008, the Supreme Court held in Boumediene v. Bush that the MCA's habeas-stripping provision is unconstitutional with respect to Guantánamo detainees and that the review provided for under the DTA is not an adequate substitute for habeas,Footnote ¹⁰⁶ reopening detainees’ ability to litigate their habeas petitions before the federal courts. Petitioners argued that in this way, through Executive Order, statutory law, and litigation, the U.S. government delayed effective access to habeas corpus to Guantánamo detainees for more than six years.Footnote ¹⁰⁷

72. Petitioners likewise argued that, at least since 2006 and according to the government itself, “the objective of the ongoing detention of Guantánamo detainees is not primarily to prevent any individuals from taking up arms against the United States, but to obtain information and intelligence.”Footnote ¹⁰⁸

73. Notwithstanding these changes, Boumediene left issues including “the content of the law that governs petitioners’ detention,” access to counsel, and rules of evidence to be used in habeas proceedings to be decided by the lower courts.Footnote ¹⁰⁹ The Commission has previously considered how, since Boumediene, the D.C. Circuit Court of Appeals—whose decisions are authoritative unless and until the Supreme Court elects to hear another case regarding a Guantánamo detainee—has eroded Boumediene’s due process protections.Footnote ¹¹⁰ In this regard, the Commission has previously concluded that “[w]hile fundamental human rights standards uniformly indicate that detention must be understood and applied as an exceptional measure, the standards being applied to the Guantanamo detainees clearly tilt the presumptions in favor of continued detention and against release […] Given the duration of the detention and the severity of the regime […] it is clear that a higher standard of review is required to bring standards into compatibility with human rights norms.”Footnote ¹¹¹

2. Mr. Ameziane's habeas corpus petition

74. In this context, Mr. Ameziane was held virtually incommunicado until June 2004, when the Supreme Court's decision in Rasul for the first time afforded the Guantánamo detainees access to lawyers and habeas review in U.S. courts. Mr. Ameziane did not participate in his CSRT held in 2004 or in subsequent ARB proceedings,Footnote ¹¹² believing that these proceedings would not provide due process and would be used to justify his indefinite detention.Footnote ¹¹³

75. The unclassified summaries of evidence used in Mr. Ameziane's CSRT and subsequent ARBs indicate that the U.S.’ basis for detaining Mr. Ameziane as of 2004–2006 included fundamentally: that he had used fraudulent passports to travel to Canada, Afghanistan, and Pakistan, and that he used an alias upon his detention by Pakistani and U.S. authorities; that he belonged to a mosque in Montreal, Canada; that a Tunisian member of that mosque gave him advice and money to travel to Afghanistan, where he hoped to be able to live under sharia law and without fear of deportation; and that in Kabul, he stayed in a guesthouse where Taliban fighters also stayed, and in Jalalabad, in a guesthouse for Arabs in the neighborhood in which the Taliban intelligence headquarters is located. On the other hand, the U.S. considered as factors in favor of his release: that he denied having received military or terrorist training, seen fighting, been a member of al Qaida, or heard rumors about the September 11 attacks before they happened; that he otherwise denied knowledge about the identity of al Qaida members, future plans for terrorist attacks, the location of training camps, etc.; that he had no intention of participating in terrorist activity if released; and that he had fled Afghanistan for Pakistan “because the non-Taliban and opposition were killing Arabs.”Footnote ¹¹⁴ The Commission notes that all of this information appears to have been obtained through interrogation of Mr. Ameziane, and notes that these summaries grow progressively more detailed between 2004 and 2006, for which reason it is reasonable to assume that the U.S. continued to incorporate new information obtained via interrogation at Guantánamo Bay into these decisions.

76. In this regard, it is clear that Mr. Ameziane was “never alleged by the U.S. government to have engaged in any acts of terrorism or other hostilities against anyone, to have picked up a weapon or participated in any military training, or to be a member of an alleged terrorist organization. Nor has he ever had any involvement with extremism, terrorism, or any act of violence whatsoever.”Footnote ¹¹⁵ The State has not otherwise controverted this allegation.

77. On this point, petitioners alleged that the U.S. government's failure to define Mr. Ameziane's status—and in consequence, whether the law of war in fact operates as the lex specialis for interpreting international human rights obligations towards him—deprived Mr. Ameziane, like other Guantánamo detainees, of the right to know and exercise his rights to challenge this detention. In particular, they argued that the changing definition of “(unlawful) enemy combatant” impeded the proper determination of Mr. Ameziane's status, like that of all Guantánamo detainees, because the various definitions of the term used since 2002 are so broad and vague that they “conflate different categories of individuals whose detention and rights would be governed by different regimes of international law”Footnote ¹¹⁶ and thus “render it impossible to determine the specific rights of Guantánamo detainees and the obligations of the United States.”Footnote ¹¹⁷

78. Mr. Ameziane filed a habeas corpus petition before the D.C. District Court on February 24, 2005, following the Supreme Court's decision in Rasul. This petition alleged that Mr. Ameziane

79. This petition was subsequently stayed by the district court on April 12, 2005, pending resolution of all appeals in In re Guantánamo Detainee Cases (ultimately, until the Supreme Court's decision in Boumediene).Footnote ¹¹⁹ His right to habeas was then purportedly stripped by the DTA of 2005 and MCA of 2006.Footnote ¹²⁰ Once Boumediene was decided in June 2008, Mr. Ameziane was able to continue litigating his habeas petition.

80. In October 2008, four months after Boumediene was decided, Mr. Ameziane was cleared for transfer from Guantánamo by the Bush Administration. At this time, in sealed proceedings before the U.S. federal court, the U.S. government conceded that there were no “military rationales” for continuing to detain Mr. Ameziane.Footnote ¹²¹ The U.S. attempted to forcibly transfer Mr. Ameziane to Algeria in October 2008, but the transfer was temporarily enjoined by the district court at Mr. Ameziane's request due to his expressed fear of being returned to Algeria.Footnote ¹²² Following this, the U.S. attempted to stay the litigation of the habeas petition in December 2008 because “the detention of [Ameziane] is no longer at issue” and “the only issue truly remaining is the country to which [Ameziane] should be sent.”Footnote ¹²³ The district court denied a stay on this occasion, and the case moved toward a hearing on the merits of the habeas petition.Footnote ¹²⁴

81. However, following Mr. Ameziane's re-authorization for transfer by the Obama Administration's Guantánamo Review Task Force on May 21, 2009, the district court granted a stay of the habeas litigation at the government's request and over Mr. Ameziane's objections.Footnote ¹²⁵

82. The district court subsequently held a series of hearings to address the stay and related issues, including whether Mr. Ameziane could publicly state that he had been approved for transferFootnote ¹²⁶—in particular, whether he could disclose this information to countries where he was applying for resettlement in order to advance the resettlement process. Throughout this litigation, the position of the government was that if detainees were to begin negotiating their resettlement with third countries using information about their cleared status, it would interfere with sensitive diplomatic efforts to relocate all Guantánamo detainees.Footnote ¹²⁷ Implicit and explicit in this position was that the government was unwilling to consider Mr. Ameziane's transfer to any country other than Algeria, believing that limited resettlement spots in third countries needed to be reserved for detainees who could not be returned to their countries of origin.Footnote ¹²⁸ In hearings, the district judge expressed repeatedly

83. Mr. Ameziane and his lawyers were ultimately prevented by a D.C. Circuit Court order from disclosing publicly that Mr. Ameziane had been cleared for transfer,Footnote ¹³⁰ complicating, among others, efforts to resettle Mr. Ameziane in a third country and to fully litigate his case before this Commission, given that this information could not be communicated to co-petitioners CEJIL or the IACHR until October 2012.Footnote ¹³¹

84. On October 5, 2012, the D.C. Circuit Court of Appeals unsealed voluminous records relating to dozens of Guantánamo detainees’ federal habeas litigation, at the State's request. These unsealed records revealed publicly the information described above: that Mr. Ameziane's habeas corpus petition had been stayed since May 2009 because Mr. Ameziane had twice been cleared for transfer to a third country in 2008 and 2009, and the “only remaining issue” in his case was to which country he would be transferred.Footnote ¹³²

85. The State subsequently represented to the Commission in 2013 that it “will not oppose a motion by Mr. Ameziane to lift the stay on his habeas case in order to litigate the lawfulness of his detention.”Footnote ¹³³ However, the record of Mr. Ameziane's case before the district court makes clear that in fact the government requested that his habeas case be stayed in 2009 in order not to have to litigate a claim that it considered “a waste of everyone's time,” as a successful habeas case would only leave Mr. Ameziane in the same position— awaiting transfer from Guantánamo.Footnote ¹³⁴ Petitioners argued that for the U.S. to change its position regarding the effectiveness of litigating his habeas corpus case as a remedy to end his detention is a bad-faith tactic to further delay Mr. Ameziane's transfer from Guantánamo, is inequitable, and should be precluded by estoppel.Footnote ¹³⁵

86. With respect to all of the foregoing, the State indicated to the Commission that Mr. Ameziane filed a habeas petition “on February 24, 2005, challenging the lawfulness of his detention. The case was stayed in May 2009 pending efforts to transfer Mr. Ameziane and ultimately dismissed as moot following his transfer to Algeria. Mr. Ameziane had access to counsel in connection with his habeas proceeding throughout his time in detention. Further, prior to the May 2009 stay, the United States submitted to the habeas court and Mr. Ameziane's counsel filings detailing the factual bases for Mr. Ameziane's detention, and the court held multiple hearings related to the bases for detention.”Footnote ¹³⁶ The State reiterated the Obama Administration's commitment to closing Guantánamo, and argued that “restrictions that Congress has placed on transfers of Guantanamo detainees since 2011 have served as significant impediments to closing the facility,” but highlighted that on December 23, 2016, there were 59 detainees at Guantanamo, compared to 242 detainees on January 20, 2009, when the President took office.Footnote ¹³⁷

87. In summary, from January 2002 to June 2008, Mr. Ameziane's right to habeas corpus to determine the legality of his detention was either unavailable under applicable federal law or stayed pending litigation in higher courts. Mr. Ameziane was first cleared for transfer from Guantánamo because no “military rationales” existed for his continued detention in October 2008. Finally, from May 2009 until his forced transfer in December 2013, Mr. Ameziane remained detained in Guantánamo with his federal habeas case stayed as he waited for the government to act to safely transfer him from Guantánamo and end his detention, culminating in his forced transfer to his home country of Algeria, where he feared persecution and torture, addressed in the following section.

1. General framework and considerations regarding transfers

88. Between January 2009 and December 2010, cleared detainees could be transferred or released from Guantánamo by the Executive. However, the National Defense Authorization Act (NDAA), effective January 2011, placed a number of restrictions on the ability of the Executive to transfer detainees, which dramatically slowed the pace of transfers after this date.Footnote ¹³⁸ The NDAA for FY 2011 put in place onerous procedural requirements that made transfer of detainees from Guantánamo extremely difficult;Footnote ¹³⁹ these requirements were only eased in the NDAA for FY 2014, after Mr. Ameziane's transfer.Footnote ¹⁴⁰ Notwithstanding, the Commission has previously considered that “[e]ven though restrictions on transfers imposed by Congress have been a significant obstacle in the closure of the detention facility, the Executive branch has the responsibility to explore all potential avenues [including] diplomatic negotiations [and] the search for opportunities within the existing statutory limitations.”Footnote ¹⁴¹

89. In April 2009, the D.C. Circuit Court held in Kiyemba v. Obama (known as Kiyemba II)—a case involving habeas petitions by nine Guantánamo detainees challenging their transfer based on fear of torture in their home country—that the judiciary may not review executive branch decisions regarding when or where to transfer detainees from Guantánamo, and held invalid a district court ruling requiring the government to give a detainee's counsel 30 days’ advance notice of the detainee's transfer from Guantánamo.Footnote ¹⁴² The court concluded:

90. The U.S. alleged that its Special Task Force issued a set of recommendations to ensure that U.S. transfer practices “comply with the domestic laws, international obligations, and policies of the [U.S.] and do not result in the transfer of individuals to face torture.”Footnote ¹⁴⁴ In this regard, “[a]ll transfers […] are conditioned on the receipt of assurances of humane treatment from the receiving government. The U.S. government will transfer a detainee only if it determines that the transfer is consistent with our humane transfer policy[, considering] the totality of relevant factors,” including “the individual's allegations of prior or potential future mistreatment in the receiving State; the receiving State's overall human rights record; the specific factors suggesting that the individual in question is at risk of being tortured […]; whether similarly situated individuals have been tortured […]; and any humane treatment assurances provided by the receiving State (including an assessment of their credibility).” All of this, with the objective of determining whether “it is more likely than not that the individual will be tortured in the country to which he is being transferred.”Footnote ¹⁴⁵

91. The State elaborated that humane treatment assurances “should fundamentally reflect a credible and reliable commitment by the receiving State to treat the transferred individual humanely and that such treatment would be consistent with applicable international and domestic law.” In this regard, it takes into account “information regarding the judicial and penal conditions and practices of the receiving country; U.S. relations with the receiving country; the receiving country's capacity and incentives to fulfill its assurances; political or legal developments in that country; the country's record in complying with similar assurances; the particular person or entity providing the assurances; and the relationship between that person or entity and the entity that will detain and/or monitor the individual transferee's activity.”Footnote ¹⁴⁶ The State made clear that, in case of “credible allegations that diplomatic assurances were not being honored, [it] would take diplomatic or other steps to ensure that the detainee in question would be appropriately treated, and to make clear the bilateral implications of continued non-observance of commitments made to the U.S. government.”Footnote ¹⁴⁷ The State did not, however, provide the IACHR with any specific information regarding the individualized evaluation and determination it allegedly made in Mr. Ameziane's case in accordance with the criteria described above.

92. The IACHR has previously noted that transfers from Guantánamo Bay “have a significant political dimension,” and “the transfer of individuals from Guantanamo is and has historically been based on diplomatic relationships. The fact that the Western Europeans were released first, along with most of the Saudis and Pakistanis, illustrates this political aspect.”Footnote ¹⁴⁸ The IACHR has likewise criticized the institution of “transfer” (subject to security measures) as opposed to release of many Guantánamo detainees, considering that all remaining detainees have been unlawfully detained for more than a decade, and inter-agency review has resulted in a decision not to prosecute many of them, including Mr. Ameziane; thus “any such restrictions [security measures, restrictions of liberty] imposed by the [U.S.] or by the receiving country would constitute an arbitrary interference with the enjoyment of the detainees’ human rights.”Footnote ¹⁴⁹

93. The Commission continued:

2. Mr. Ameziane's forced transfer

94. Throughout proceedings before the Commission, petitioners argued that Mr. Ameziane would be at risk of persecution if returned to Algeria and needed to be resettled in a third country in order to safely leave Guantánamo.Footnote ¹⁵¹ They argued that Mr. Ameziane would be at risk of being targeted and subjected to arbitrary arrest and detention in Algeria on the basis of: stigma relating to his time in Guantánamo, his prior application for asylum in Canada, and his and his family's status as observant Muslims in their hometown of Kabylie, Algeria.Footnote ¹⁵² They also mentioned that U.S. interrogators had indicated to Mr. Ameziane that he would be mistreated if returned to Algeria, and threatened to return him to Algeria if he did not cooperate with them; that his brother indicated that “Mr. Ameziane would be shot” if returned, and that “everyone thinks my family is connected to terrorism because [Mr. Ameziane] is in Guantánamo;” and that the Algerian Ambassador to the U.S. has stated that “all Algerian citizens in Guantánamo would be considered serious security threats, and would be subject to further detention and investigation if returned.”Footnote ¹⁵³ Regarding Mr. Ameziane's particular situation, “the Ambassador stated specifically that there is no reason an Algerian citizen who had lived in Canada or Europe would go to Afghanistan except to engage in unlawful activity.”Footnote ¹⁵⁴

95. The experience of Guantánamo detainees transferred to Algeria before Mr. Ameziane's transfer raised concerns about return to that country. For example, in Toward the Closure of Guantánamo, the Commission described how detainee Abdul Aziz Naji was transferred to Algeria on or about July 17, 2010, despite his reported statements that he would rather remain in Guantanamo than be sent to his country of origin, where he feared persecution and torture. Upon arrival in Algeria, he was allegedly held incommunicado for 20 days, then released but kept under constant surveillance. In 2012, allegedly following a one-hour trial at which no new evidence was presented other than the accusations made against him by the U.S. in 2002, he was sentenced to three years in prison. Mr. Naji reportedly nearly died in prison.Footnote ¹⁵⁵

96. The State blocked Mr. Ameziane's resettlement to at least one third country between 2009 and 2013.Footnote ¹⁵⁶ Mr. Ameziane's representatives indicated that at the time of his transfer, he was awaiting a reply from the government of Canada to his request to resettle in that country. They also indicated that in 2010 Luxembourg had offered to receive him, and that more recently other countries had also extended offers for Djamel Ameziane to settle in their respective territories.Footnote ¹⁵⁷

97. On December 5, 2013, Mr. Ameziane and Bensayah Belkacem, a fellow Algerian national, were forcibly transferred to Algeria by the U.S. government, despite Mr. Ameziane’s fears of persecution in that country, which he had repeatedly conveyed to U.S. officials and the ICRC.Footnote ¹⁵⁸ At the time, the Commission condemned the transfer, considering that it had been carried out “against Djamel Ameziane's will and in violation of international human rights law.”Footnote ¹⁵⁹ At that time, a State Department spokesman defended the decision saying that the U.S. had previously repatriated 14 other Algerians and was “satisfied that the Algerian government would continue to abide by lawful procedures and uphold its obligations under domestic and international law in managing the return of former Guantánamo detainees.”Footnote ¹⁶⁰ U.S. government officials claim that the transfer took place “consistent with our humane treatment policy.”Footnote ¹⁶¹

98. Mr. Ameziane stated, “I did not kick and scream and cling to my cell door as some men did. I went to the plane to accept whatever further fate awaited me. I was broken, I was finished, I had nothing left.”Footnote ¹⁶² He was transferred via military cargo plane, where “[m]y feet were chained to the floor of the plane and my hands were shackled to my waist for the entire flight. I was blindfolded and was wearing noise-cancelling headphones as well.”Footnote ¹⁶³ Upon arrival in Algeria, “I was handed over to the [authorities] who boarded the plane, cuffed my hands behind my back, pulled my T-shirt up to cover my face […] They brutally got me out of the plane and […] drove me to the police station where I was subjected to a short interrogation.”Footnote ¹⁶⁴ He was then jailed at the General Directorate of National Security, where he remained until December 10; during that time, he was subjected to several interrogations, and held in a large cell “along with criminals and drug traffickers” in poor hygienic conditions, which left him sick and hardly able to leave his bed for months.Footnote ¹⁶⁵

99. On December 10, 2013, he was taken to the courthouse, where he was interrogated and then placed under judicial supervision and released on probation. More than two years later, Mr. Ameziane was subjected to a criminal trial in Algeria alongside Bensayeh Belkacem, on charges of “joining an active terrorist group abroad.”Footnote ¹⁶⁶ Mr. Ameziane stated: “I was notified a few days ahead of the trial that I would face criminal charges alleging my membership in a terrorist group outside of Algeria. I was very surprised and terrified, and contacted my lawyers at CCR. I was certain a guilty plea would be manufactured to ensure I remained in prison forever even though I was innocent.”Footnote ¹⁶⁷

100. The trial was held in May 2016, and the General Prosecutor sought a sentence of ten years’ imprisonment for the defendants.Footnote ¹⁶⁸ According to Mr. Ameziane, the proceedings on the day of the trial were summary in nature, and he and Mr. Belkacem were quickly acquitted of the charges.Footnote ¹⁶⁹ He stated that following his exoneration “I was ultimately able to obtain a passport. I am now free and clear as far as the Algerians are concerned. I am very thankful for this, particularly as I had feared persecution for so many years. It is a weight that has been lifted from me.”Footnote ¹⁷⁰

1. Remedies to challenge detention conditions at Guantánamo Bay

102. At least until 2014, there was no recognized judicial remedy to challenge any aspect of the conditions of confinement at Guantánamo Bay. Judicial review of such claims was explicitly barred by § 7(a)(2) of the Military Commissions Act of 2006, which stripped the federal courts of jurisdiction over claims “relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement” of any person detained as an “enemy combatant.”Footnote ¹⁷² In Boumediene v. Bush the U.S. Supreme Court declined to address the scope of conditions of confinement claims via habeas challenges; subsequently, district court judges continued to give effect to § 7(a)(2) of the MCA,Footnote ¹⁷³ at least until Mr. Ameziane's transfer from Guantánamo. (In 2014, after his transfer, the D.C. Circuit for the first time permitted a habeas claim related to force-feeding to proceed in Aamer v. Obama.Footnote ¹⁷⁴ ) Neither party has alleged that Mr. Ameziane was ever able to challenge the conditions of his detention in a court of law.

2. Remedies to secure the return of confiscated property

103. At the time of Mr. Ameziane's arrest, officials seized 740 British pounds, 429,000 Afghanis, and 2,300 Pakistani rupees from him,Footnote ¹⁷⁵ or the equivalent of about US $11,500 in 2001 (IACHR's calculation). The U.S. government has a policy of retaining all currency seized from Guantánamo detainees, arguing that “[a]lthough detainees might use the funds returned to them for legitimate and benign purposes, such as to purchase food or clothing, it also remains possible that former detainees will use their returned money to help finance terrorist activities.”Footnote ¹⁷⁶

104. Mr. Ameziane's lawyers brought a civil suit in the U.S. seeking the return of this money, but the suit was dismissed; the court indicated in its decision that neither the Defense Department's confiscation of his money nor the stigma associated with prior detention at Guantánamo (which might be mitigated by a U.S. court ruling that the detention was unlawful) constitute “concrete collateral consequence[s] of his detention at Guantanamo that [are] susceptible to judicial correction” via habeas corpus.Footnote ¹⁷⁷ The court held that the fact that this situation leaves Mr. Ameziane without a remedy to secure the return of his property is not constitutionally problematic, because “[n]ot every violation of a right yields a remedy, even when the right is constitutional.”Footnote ¹⁷⁸ In this same decision, his habeas corpus petition was dismissed as moot.Footnote ¹⁷⁹

3. Investigation and criminal prosecution of acts of torture

105. The Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 provide an ongoing and retroactive complete defense to civil and criminal prosecution to the State agents responsible for Mr. Ameziane's treatment at Guantánamo Bay.Footnote ¹⁸⁰ Section (a) of the statute provides, in relevant part:

106. In other words, the DTA provided that in a civil or criminal action against a U.S. agent engaged in “detention and interrogation of [non-U.S. citizens],” a finding that activities were “officially authorized and determined to be lawful at the time they were conducted” and that the agent “did not know that the practices were unlawful” is a complete defense, where it is relevant to weigh “good faith reliance on advice of counsel” in determining that the agent did not know the practices were unlawful. Moreover, the MCA of 2006 made this provision retroactive for all civil and criminal actions related to actions occurring between September 11, 2001 and the passage of the DTA on December 30, 2005.Footnote ¹⁸¹

107. In this light, and notwithstanding information provided by the U.S. in 2015 regarding “the conviction of a CIA contractor and a Department of Defense contractor for abusing detainees in their custody” and criminal investigations regarding at least “101 persons alleged to have been mistreated while in U.S. Government custody subsequent to the September 11 attacks” conducted by the Department of Justice that were ultimately declined for prosecution,Footnote ¹⁸² the Commission has not received information to date indicating that criminal prosecution has been brought against any person involved in acts of torture in Guantánamo.Footnote ¹⁸³ In particular, no party has alleged in this case that any criminal investigation or prosecution has ever been brought regarding Mr. Ameziane's treatment while in U.S. custody.

4. Remedies to receive civil reparations for harms suffered in U.S. custody

108. As described above, the Detainee Treatment Act of 2005 and the MCA contain broad and retroactive language stripping the federal courts of jurisdiction to hear “any other action against the [U.S.] or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of [a non-U.S. citizen]” determined to be an “unlawful enemy combatant,”Footnote ¹⁸⁴ and creating a complete defense to civil or criminal actions against U.S. agents for harms relating to “detention and interrogation of [non-U.S. citizens].”Footnote ¹⁸⁵ These provisions, particularly taken together, appear to foreclose the possibility of any effective remedy that could result in reparations for former Guantánamo detainees, by purporting to strip the federal courts of jurisdiction over any such claims and by creating a complete defense for the State agents involved.

109. And indeed, the Commission has not, to date, received information from any party indicating the existence of any effective civil remedy to receive reparations for harms suffered by Guantánamo detainees while in U.S. custody. In this regard, the Commission has previously considered information about two claims dismissed by the federal courts: one, a “Bivens” claim (a cause of action for damages resulting from a violation of constitutional rights by a federal officer acting under color of law) brought by a former Guantánamo detainee, and the other, an Alien Tort Statute claim against a Boeing subsidiary accused of arranging flights for the CIA in the context of the “extraordinary rendition program,” rejected based on national security concerns.Footnote ¹⁸⁶

1. Application of the American Declaration and interpretation in light of developments in international human rights law since its adoption

111. The American Declaration is a source of legal obligation that may be applied by the Inter-American Commission to the U.S. on the basis of the State's commitment to uphold respect for human rights as provided for and defined in the Charter of the Organization of American States (OAS).Footnote ¹⁹⁰ The U.S. deposited its instrument of ratification of the OAS Charter on June 19, 1951. Article 20 of the Commission's Statute, as well as its Rules of Procedure, authorize the IACHR to examine the alleged violations of the Declaration raised by the petitioners against the State, relating to acts or omissions that occurred after the U.S. joined the OAS.

112. The Commission has long held that it is necessary to consider the provisions of the American Declaration in the broader context of both the inter-American and international human rights systems, in light of developments in international human rights law since the Declaration was adopted and having regard to other relevant rules of international law applicable to member states against which complaints of violations of the Declaration are properly lodged.Footnote ¹⁹¹ Pursuant to the principles of treaty interpretation, the Inter-American Court of Human Rights has likewise endorsed an interpretation of international human rights instruments that takes into account developments in the corpus juris of international human rights law over time and in present-day conditions. In the present case, relevant international instruments include the International Covenant on Civil and Political Rights (ICCPR, 1967), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT, 1984), and the 1967 Protocol to the 1951 Convention on the Status of Refugees, to which the U.S. is Party.Footnote ¹⁹² It is necessary for the Commission to take these instruments into account as well because one instrument may not be used as a basis to deny or limit other favorable or more extensive human rights that individuals might otherwise be entitled to under international or domestic law or practice.Footnote ¹⁹³

113. Developments in the corpus of international human rights law relevant to interpreting and applying the American Declaration may additionally be drawn from the provisions of other prevailing international and regional human rights instruments. In particular, this includes the American Convention on Human Rights, which, in many instances, may be considered to represent an authoritative expression of the fundamental principles set forth in the American Declaration. While the Commission clearly does not apply the American Convention in relation to Member States that have yet to ratify that treaty, its provisions may well be relevant in informing an interpretation of the Declaration.Footnote ¹⁹⁴

2. Application and interaction of international humanitarian law with international human rights law

114. In the course of this litigation and all matters before the Commission concerning Guantánamo Bay, the U.S. has consistently argued that the Commission lacks jurisdiction to consider these matters because international humanitarian law (IHL, also known as the law of war) applies as lex specialis.Footnote ¹⁹⁵ The Commission understands this to be a specific manifestation of the State's general and longstanding position regarding lack of jurisdiction,Footnote ¹⁹⁶ because it is well established that when interpreting and applying the provisions of inter- American human rights instruments, it is both appropriate and necessary to take into account Member States’ obligations under other human rights and humanitarian law treaties, which together create an interconnected and mutually-reinforcing regime of human rights protections.Footnote ¹⁹⁷

115. In particular, where situations of armed conflict may be concerned, international human rights law is in no way displaced by the law of armed conflict or any other regime of international law. Rather, human rights law continues to apply except to the extent that it may properly be made the subject of derogationsFootnote ¹⁹⁸ (a situation that no party alleges to exist in this case). Moreover, there is an integral linkage between the law of human rights and humanitarian law because they share a “common nucleus of nonderogable rights and a common purpose of protecting human life and dignity;”Footnote ¹⁹⁹ indeed, there may be a substantial overlap in the application of these bodies of law, and certain core guarantees (such as the prohibition of torture, as a jus cogens norm) will continue to apply in all circumstances.Footnote ²⁰⁰ Conversely, the test for assessing the observance of a particular right in a situation of armed conflict, such as the right to personal liberty, may under certain circumstances be distinct from that applicable in peacetime. Under such circumstances, it is appropriate to refer to the applicable lex specialis of IHL in order to evaluate whether a detention was “arbitrary” or not within the meaning of Articles I and XXV of the American Declaration.Footnote ²⁰¹

116. In this regard, while the Commission looks to the American Declaration as the primary source of international obligations and applicable law in cases concerning the United States, this does not mean that the Commission may not make reference to other sources of law in effectuating its mandate, including international humanitarian law.Footnote ²⁰² In interpreting and applying human rights protections to facts such as those described in this report, then, it may be necessary for the Commission to refer to and consider pertinent provisions of international humanitarian law as the applicable lex specialis.Footnote ²⁰³

1. International human rights and humanitarian law standards regarding arbitrary detention

117. The Commission has long recognized that “[i]t is only when the legal status of [detainees] is properly determined that they can be afforded the rights to which they are entitled under domestic and international law by reason of that status.”Footnote ²⁰⁵ This is because IHL regulates the justifications for and conditions of deprivations of liberty differently from international human rights law, and thus affects an analysis of State compliance with international human rights obligations in armed conflict situations.Footnote ²⁰⁶ The significant implications that the application of different international law regimes may have for a person's right to personal liberty and security, in turn, highlights the importance of ensuring that a fair procedure exists for determining the status of individuals taken into custody by a State in order to ensure that they are afforded the international protections to which they are entitled.Footnote ²⁰⁷

118. On one hand, international human rights law requires that “any deprivation of liberty be carried out in accordance with pre-established law, that a detainee be informed of the reasons for the detention and promptly notified of any charges against them, that any person deprived of liberty is entitled to juridical recourse, to obtain, without delay, a determination of the legality of the detention, and that the person be tried within a reasonable time or released pending the continuation of proceedings.”Footnote ²⁰⁸ The Commission has recognized that reasons of public security may justify restrictions on liberty or the extension of normal periods of preventive or administrative detention, subject to certain safeguards.Footnote ²⁰⁹

119. However, the Commission has clarified that even under these circumstances, detention may continue for only that period necessary in light of the situation, and must remain subject to non-derogable protections to guard against prolonged incommunicado or indefinite detention and violations of non-derogable rights, including the right to humane treatment and the right to a fair trial.Footnote ²¹⁰ These include “the requirement that the grounds and procedures for the detention be prescribed by law, the right to be informed of the reasons for the detention, prompt access to legal counsel, family and, where necessary or applicable, medical and consular assistance, prescribed limits upon the length of prolonged detention, and maintenance of a central registry of detainees.”Footnote ²¹¹ These protections also include appropriate judicial review mechanisms to supervise detentions, which must be promptly available upon arrest or detention and at reasonable intervals when detention is extended.Footnote ²¹² In this regard, the Commission has previously determined a law authorizing the extension of incommunicado preventative detention in certain cases for up to 15 days to be contrary per se to the right to have the legality of detention promptly determined by a judge.Footnote ²¹³

120. In contrast, IHL permits detention of combatants by a party to an armed conflict to prevent members of opposing forces from continuing to fight,Footnote ²¹⁴ and in general permits detention until the cessation of active hostilities. The particular rules governing detention may vary according to the status of the detainee (i.e. prisoner of war, privileged or unprivileged belligerent).Footnote ²¹⁵ For this reason, where the detainee is not a combatant or where there is a doubt as to his or her status, IHL requires review of the person's status and, accordingly, his or her susceptibility to and conditions of detention or internment.Footnote ²¹⁶ While the applicability and scope of international humanitarian law protections to Guantánamo detainees remains the subject of legal debate,Footnote ²¹⁷ it is clear that, at minimum, Common Article 3 of the Geneva Conventions and the Second Additional Protocol provide certain minimum standards of treatment for detainees in non-international armed conflicts, though they do not specify legal or procedural safeguards.Footnote ²¹⁸

121. IHL generally permits the administrative detention or internment of civilians and others who have not taken any active part in hostilities only under exceptional circumstances, when imperative concerns of security require it, when less restrictive measures could not accomplish the objective sought, when the action is taken in compliance with pre-existing law, and ensuring the right of the detainee to be heard and to appeal the decision, as well as regular review of any continuation of the detention.Footnote ²¹⁹ In this regard, minimum human rights standards require that the decision-maker in review proceedings meet prevailing standards of impartiality, that the detainee is given an opportunity to present evidence and to know and meet the claims of the opposing party, and that the detainee be given an opportunity to be represented by counsel or other representative.Footnote ²²⁰ Even where armed hostilities may occur over a prolonged period, this factor alone cannot justify the extended detention or internment of civilians; their detention is only justified as long as security concerns strictly require it.Footnote ²²¹

122. As the Commission considered in 2002, notwithstanding these specific rules and mechanisms governing the detention of persons in situations of armed conflict, there may be circumstances in which the continued existence of active hostilities becomes uncertain, or where a belligerent occupation continues over a prolonged period of time. Where this occurs, the regulations and procedures under IHL may prove inadequate to properly safeguard the minimum human rights standards of detainees. In this regard, the Commission has previously considered that where detainees find themselves in uncertain or protracted situations of armed conflict or occupation, the supervisory mechanisms as well as judicial guarantees under international human rights law and domestic law, including habeas corpus, may necessarily supersede IHL where this is necessary to safeguard the fundamental rights of those detainees.Footnote ²²²

2. Arbitrary detention at Guantánamo Bay

123. The Commission has previously determined that under both international human rights and humanitarian law, “the indefinite detention of persons still held at Guantánamo without charge after more than a decade, mainly for the purpose of obtaining intelligence, constitutes a serious violation of their right to personal liberty guaranteed under Article I of the American Declaration.”Footnote ²²³ This is so because, even if IHL is applied as lex specialis, the “prolonged and indefinite detention clearly goes beyond an exceptional and strictly necessary measure ordered for security reasons, and is arbitrary and unjust. Prisoners detained in the context of non-international armed conflicts may only be held for security reasons and they cannot, therefore, be held indefinitely for purposes of interrogation.”Footnote ²²⁴

124. The Commission found at that time that the arbitrariness of detention is particularly clear with respect to those prisoners who have been cleared for transfer by the U.S. government.Footnote ²²⁵ It further emphasized that reasons of public security “cannot serve as a pretext for the indefinite detention of individuals, without any charge whatsoever” and that when these security measures are extended beyond a reasonable time they become serious violations of the right to personal liberty.Footnote ²²⁶

3. Arbitrary detention of Mr. Ameziane

125. The Commission's previous determination regarding the arbitrariness of indefinite detention at Guantánamo “without charge [for] more than a decade” is dispositive in Mr. Ameziane's case, as he was held in U.S. custody for nearly 12 years without charge; for five of those years, moreover, the U.S. admitted in federal court that he was not properly detained, yet failed to release him. Notwithstanding, in this section the Commission will proceed to analyze additional elements of his case that contribute to the overwhelming determination that Mr. Ameziane's detention was arbitrary by any measure of international human rights or humanitarian law.

126. The Commission observes that Mr. Ameziane's arbitrary detention is closely tied to his lack of access to an effective judicial remedy throughout his time in U.S. custody, an issue that will be analyzed in greater depth below in section D.1. For the present analysis, it is sufficient to establish that no competent tribunal ever determined that Mr. Ameziane was legally detained by the U.S. government, nor made any determination regarding Mr. Ameziane's status under international humanitarian law (IHL).

127. As a threshold issue, the Commission notes that the U.S. failed, throughout Mr. Ameziane's time in detention, to ever properly determine his status under international law. The Commission recalls that it has called for the proper determination of detainee status in the framework of its precautionary measures since 2002.Footnote ²²⁷ In particular, as determined in the findings of fact, the U.S. held Mr. Ameziane virtually incommunicado from January 2002 to June 2004 at Kandahar airbase and Guantánamo Bay—in a context in which the policy of the U.S. government at the time was to deny that any regime of law, domestic, international, or foreign, applied to Mr. Ameziane's detention. Subsequently, the State denied him meaningful review of his status under international law both by failing to ensure basic due process guarantees—by using “Combatant Status Review Tribunals” as a purported alternative to habeas corpus without ensuring basic guarantees such as access to counsel, evidence, and substantive judicial review—and by continuing to classify him as an “enemy combatant,” which has no clear analogue in IHL and thus does not offer clarity as to Mr. Ameziane's legal status or rights under international and domestic law.Footnote ²²⁸ From 2008 on, the U.S. government admitted in federal court that Mr. Ameziane was not properly detained and purported to be seeking to safely transfer him.

128. The Commission considers that the failure to ever properly determine Mr. Ameziane's status under international law, which impeded him from ever effectively knowing and attempting to vindicate his rights under international human rights or humanitarian law, constitutes a violation of article XXV of the American Declaration.

129. Under international human rights law, Mr. Ameziane's detention was manifestly arbitrary because he was not promptly brought before a competent judicial authority but rather held incommunicado for two-and-a-half years—and in fact, the legality of his detention was never determined by a judicial authority—and was ultimately held for nearly 12 years without charge. The Commission does not find that persuasive “reasons of public security” justified his extended detention. First, the Commission has no evidence indicating that an individualized determination was made in this respect at least until Mr. Ameziane's CSRT was conducted. Second, in addition to the serious due process concerns regarding CSRT and ARB processes and the fact that the information in them was obtained via torture, as discussed elsewhere in this report—Mr. Ameziane's CSRT and ARB records do not present persuasive evidence that he constituted a threat to public security, and in fact present strong evidence of religious discrimination in the decision to continue his detention, discussed further infra section E of this chapter. Third, the lack of security reasons to detain him was incontrovertible at least as of 2008, given the State's expressed lack of “military rationales” to continue detaining him at that time.

130. Even assuming arguendo, however, that “reasons of public security” could have initially justified a more extended period of preventive detention in this case, the Commission considers that the total duration of detention, the absence of due process to determine the legality of detention, supervise, and review continuing detention, as well as the absence of non-derogable protections relating to detention conditions and appropriate periodic review for extended detention, make clear the violation under international human rights law.

131. Mr. Ameziane's detention was also clearly arbitrary under international humanitarian law. Assuming arguendo that Mr. Ameziane could have properly been detained in Pakistan in late 2001 as a prisoner of war, privileged, or unprivileged belligerent, his decade-long detention was arbitrary because it “clearly [went] beyond an exceptional and strictly necessary measure ordered for security reasons,” rather than for purposes of continued interrogation. The Commission considers that throughout his time in Guantánamo, the lack of security reasons to detain Mr. Ameziane was apparent, becoming incontrovertible at least as of 2008, in line with the analysis above.

132. In this regard, the Commission calls attention to the lack of a factual showing by the State that there were valid security reasons to detain or continue to detain Mr. Ameziane, and, to the contrary, the affirmations by petitioners, substantiated by his CSRT and ARB records, that Mr. Ameziane was “never alleged by the U.S. government to have engaged in any acts of terrorism or other hostilities against anyone, to have picked up a weapon or participated in any military training, or to be a member of an alleged terrorist organization;” that he was sold to U.S. authorities for a bounty by Pakistani authorities; and Mr. Ameziane's affirmations that any purported confessions by him were made under torture, and are untrue. None of these allegations have been contested by the State in the current proceedings, despite ample opportunity to do so.

133. For this reason, the Commission considers it relevant to additionally analyze Mr. Ameziane's situation understood as a civilian detained in the context of armed conflict. As such, he would be entitled to even greater protections under IHL, including a higher standard to justify his initial and continuing detention, and ample opportunity to challenge his detention with guarantees of due process. Under this analysis, the State would not be able to meet its burden of demonstrating “imperative concerns of security” to justify his detention; that it had respected due process guarantees throughout his detention; and that there were no less restrictive measures available than rendition and internment in “an intentional system of cruel, unusual and degrading treatment and […] torture”Footnote ²²⁹ that could have accomplished the objective sought.Footnote ²³⁰

134. In summary, the State failed, over twelve years, to ever effectively determine Mr. Ameziane's status under international law; moreover, under any analysis of arguably applicable law, Mr. Ameziane's detention in U.S. custody was arbitrary. For these reasons, the Commission concludes that the United States is responsible for the violation of the right to protection from arbitrary detention, established in articles I and XXV of the American Declaration, against Djamel Ameziane.

1. The prohibition of torture and cruel, inhuman, or degrading treatment or punishment (CIDT)

138. An essential aspect of the right to personal security is the absolute prohibition of torture, a jus cogens (peremptory) norm of international law.Footnote ²⁴³ The Commission has defined torture as: 1) an intentional act through which severe physical and mental pain and suffering is inflicted on a person; 2) committed with a purpose (e.g. to intimidate, punish, or obtain information) or intentionally (i.e. to produce a certain result in the victim); 3) by a state agent or by a private actor acting at the instigation of or with the acquiescence of the former.Footnote ²⁴⁴ Torture may thus be understood as an aggravated form of inhuman treatment perpetrated with a purpose; the essential criterion to distinguish between torture and other CIDT “primarily results from the intensity of the suffering inflicted.”Footnote ²⁴⁵

139. Likewise, the CAT, to which the U.S. is a party, defines torture as

140. While no inter-American instrument defines “cruel, inhuman or degrading treatment,” nor defines it in relation to torture, the jurisprudence of the Inter-American Commission has established that “inhuman treatment is that which deliberately causes severe mental or psychological suffering, which, given the particular situation, is unjustifiable” and that “treatment or punishment of an individual may be degrading if he is severely humiliated in front of others or he is compelled to act against his wishes or conscience.”Footnote ²⁴⁷ Additionally “degrading treatment is characterized by the fear, anxiety and inferiority induced for the purpose of humiliating and degrading the victim and breaking his [or her] physical and moral resistance,” which “is exacerbated by the vulnerability of a person who is unlawfully detained.”Footnote ²⁴⁸ Furthermore, a form of treatment must attain a minimum level of severity in order to be considered “inhuman or degrading”; the evaluation of this “minimum level” is specific to the facts of each case, including the duration of the treatment, its physical and mental effects, and, in some cases, the sex, age, and health of the victim,Footnote ²⁴⁹ as well as “race, color, nationality, immigration status, and other factors.”Footnote ²⁵⁰

141. In the context of interrogation and detention, inter-American jurisprudence has previously found a variety of acts to constitute at least inhumane treatment, and some to constitute torture, including, inter alia:

142. IHL likewise closely regulates detention conditions and humane treatment of prisoners of war and civilians.Footnote ²⁵² Article 75 of Additional Protocol I, in particular, regulates the conduct of interrogations of all detainees, regardless of their status.

143. The Inter-American Court has additionally specified that any use of force that is not strictly necessary to ensure proper behavior on the part of the detainee constitutes an assault on the dignity of the person. Inter-American jurisprudence has clearly established that “the fact that a State is confronted with terrorism should not lead to restrictions on the protection of the physical integrity of the person.”Footnote ²⁵³

2. International human rights standards regarding detention conditions

144. As guarantor of the rights of the individuals in its custody, the State has the duty to ensure that their detention conditions are consistent with the dignity inherent to all human beings.Footnote ²⁵⁴ In this regard, detention conditions should not make the fact of confinement more punitive than it already is by its nature.Footnote ²⁵⁵ Similarly, IHL—as reflected in Common Article 3, Additional Protocol II (as applicable), and customary IHL— establishes the rights of detainees in relation to treatment and detention conditions.Footnote ²⁵⁶

145. The Commission has considered that the U.N. Standard Minimum Rules for the Treatment of Prisoners prescribe basic benchmarks against which to evaluate whether the treatment of prisoners satisfies the standards of humanity under the inter-American instruments in such areas as accommodation, hygiene, clothing and bedding, food, recreation, exercise and medical treatment, discipline, punishment and use of instruments of restraint.Footnote ²⁵⁷ The IACHR has considered that these rules apply regardless of the type of behavior for which the person has been imprisoned.Footnote ²⁵⁸ Likewise, the IACHR recalls that these standards derive directly from the State's special position as guarantor of the rights of persons deprived of liberty, given the extreme power imbalance between the State and the detained individual, and the nature of confinement itself, which prevents the detainee from satisfying on his or her own his or her basic needs—in particular related to economic, social and cultural rights—that are essential to permit a dignified life, to the extent possible under such circumstances. In this regard, the principal element that defines deprivation of liberty is the individual's dependence on the decisions made by the personnel of the establishment where he or she is being held;Footnote ²⁵⁹ and “the act of imprisonment carries with it a specific and material commitment to protect the prisoner's human dignity so long as that individual is in the custody of the State, which includes protecting him from possible circumstances that could imperil his life, health and personal integrity, among other rights,”Footnote ²⁶⁰ including obligations to guarantee the right to health, the right to food, and the right to clean water, among others.

146. Both the CommissionFootnote ²⁶¹ and the CourtFootnote ²⁶² have found it necessary to consider the cumulative effect or impact of the conditions of imprisonment to which a person is subjected, in order to determine whether such conditions as a whole constitute a form of CIDT or torture.Footnote ²⁶³ In this regard, the jurisprudence of the inter-American system has found that the following conditions of detention, among others, may reach the threshold of CIDT: lack of adequate infrastructure; lack of adequate ventilation and natural light; unsanitary cells; lack of beds; lack of adequate medical care or drinking water; lack of adequate sanitation (having to urinate or defecate in receptacles or plastic bags); lack of minimum privacy in sleeping quarters; very little and poor quality food; few chances to exercise; lack of education or sports programs, or few chances to engage in such activities; periodic use of forms of collective punishment and other abuses; solitary confinement and incommunicado detention; and imprisonment in locations that are extremely far away from the family residence and in severe geographic conditions.Footnote ²⁶⁴ It is worth noting, at this point, that Mr. Ameziane was subjected to all of these conditions at some point in his detention by the U.S., and several throughout the entire period of his detention.

147. When a State intentionally subjects a person to particularly injurious conditions of detention for a particular purpose, this may rise to the level of torture.Footnote ²⁶⁵ The Commission has previously considered this to be the case of the treatment of detainees at Guantánamo,Footnote ²⁶⁶ as has the ICRC.Footnote ²⁶⁷ In this regard, it is relevant to recall, in line with the Istanbul Protocol on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Istanbul Protocol”), that “[t]he distinction between physical and psychological methods [of torture] is artificial,” and a “method-listing” approach to quantifying or assessing whether particular acts or conditions rise to the level of torture “may be counter- productive, as the entire clinical picture produced by torture is much more than the simple sum of lesions produced by methods on a list.”Footnote ²⁶⁸

148. With respect to the right to food, the IACHR's Principles establish that “Persons deprived of liberty shall have the right to food in such a quantity, quality, and hygienic condition so as to ensure adequate and sufficient nutrition, with due consideration to their cultural and religious concerns, as well as to any special needs or diet determined by medical criteria. Such food shall be provided at regular intervals, and its suspension or restriction as a disciplinary measure shall be prohibited by law.”Footnote ²⁶⁹

149. Regarding discipline, the Commission has stated that prison authorities should ensure that disciplinary procedures are provided for in law, proportional to the behavior being punished and used only on an exceptional basis, when other means prove inadequate to maintain order.Footnote ²⁷⁰ Likewise, punishments imposed on inmates must not constitute acts of torture or CIDT; nor be imposed in such a way that they amount to a violation of other rights, such as the right to protection of the family.Footnote ²⁷¹ In this regard, the imposition of collective punishment, the suspension or restriction of food and drinking water, corporal punishment, close confinement in an unlit cell, and the use of means and instruments of coercion and physical restraint as a form of disciplinary sanction are all prohibited.Footnote ²⁷²

3. Particular considerations regarding solitary confinement, incommunicado, and indefinite detention

150. Solitary confinement has been defined as “[t]he physical isolation of individuals who are confined to their cells for twenty-two to twenty four hours a day. […] The reduction in stimuli is not only quantitative but also qualitative. The available stimuli and the occasional social contacts are seldom freely chosen, are generally monotonous, and are often not empathetic.”Footnote ²⁷³ The Commission has considered that solitary confinement should only be used on an exceptional basis, for the shortest amount of time possible and only as a measure of last resort.Footnote ²⁷⁴ Indeed, the U.N. has pointed to the need to move toward the abolition of solitary confinement.Footnote ²⁷⁵

151. The circumstances for the use of solitary confinement must be established by law, and its use must always be subject to strict judicial oversight;Footnote ²⁷⁶ in this regard, “[u]nder no circumstances may [solitary confinement] be left exclusively in the hands of the authorities in charge of [a detention center] without proper judicial oversight.”Footnote ²⁷⁷ In no instance should solitary confinement of an individual last longer than thirty days.Footnote ²⁷⁸ The Inter-American Court has further clarified that solitary confinement cells, like all detention cells, “must fulfill the minimum standards for proper accommodation, sufficient space and adequate ventilation.”Footnote ²⁷⁹

152. The Commission has concluded that it is “widely established in international human rights law that solitary confinement for extended periods of time constitutes at the very least a form of [CIDT];Footnote ²⁸⁰ as does the uncertainty of the duration of the same.”Footnote ²⁸¹ Moreover, solitary confinement can be utilized as a form of torture.Footnote ²⁸² In one case, for example, the Commission found the imposition of solitary confinement to amount to torture where: (i) it was deliberately imposed; (ii) it endangered the individual's physical integrity, taking into account his health prior to imposition of the measure; (iii) it was imposed as a punishment; (iv) the act was attributable to the State (in this case, because it was perpetrated by State agents).Footnote ²⁸³ The Commission notes that this analysis is illustrative but not exhaustive, as the basic analysis (suffering rising to the level of torture, perpetrated for a purpose, attributable to the State) may in principle be satisfied in any number of ways.

153. Likewise, the Commission has previously found prolonged incommunicado detention to constitute cruel and inhuman treatment.Footnote ²⁸⁴ Certain aspects of the prohibition of prolonged incommunicado detention are further considered to be non-derogable (e.g. access to counsel and judicial review), precisely due to their fundamental importance for ensuring the non-derogable right to humane treatment.Footnote ²⁸⁵

154. Similarly, the IACHR has stressed that even in extraordinary circumstances, indefinite detention—particularly of individuals who have not been charged—constitutes a flagrant violation of international human rights law and in itself constitutes a form of CIDT.Footnote ²⁸⁶

4. Particular considerations regarding adequate medical care in detention

155. The obligation to provide adequate medical care for persons deprived of liberty arises directly from the State's duty to ensure their humane treatment under Article I of the American Declaration,Footnote ²⁸⁷ in light of the intimate correlation between physical and mental health and personal integrity. The IACHR has thus established that “where persons deprived of liberty are concerned, the obligation of States to respect their physical integrity, not to use cruel or inhuman treatment, and to respect the inherent dignity of the human person, includes guaranteeing access to proper medical care.”Footnote ²⁸⁸ The Commission has thus defined the right to health for persons deprived of liberty as “the enjoyment of the highest possible level of physical, mental, and social well-being, including amongst other aspects, adequate medical, psychiatric, and dental care [and] permanent availability of suitable and impartial medical personnel […].”Footnote ²⁸⁹ In this regard, medical “treatment shall be based on scientific principles and apply the best practices” and “the provision of health services shall, in all circumstances, respect […] medical confidentiality; patient autonomy; and informed consent to medical treatment within the physician–patient relationship.”Footnote ²⁹⁰

156. In this regard, adequate medical care is a minimum and indispensable material requirement for the State to ensure the humane treatment of prisoners in its custody.Footnote ²⁹¹ Incarceration may not be allowed to compound the deprivation of liberty with illness and physical and mental distress.Footnote ²⁹² Indeed “lack of adequate medical assistance could be considered [a per se violation of the right to humane treatment], depending on the specific circumstances of the person, the type of disease or ailment, and the time spent without medical attention and its cumulative effects.”Footnote ²⁹³ The State's duty to provide adequate and appropriate medical care to people in its custody is all the greater where a prisoner's injuries or health concerns are the direct result of action by the authorities.Footnote ²⁹⁴ Likewise, the right to health of people in detention implies the provision of emergency care, regular and independent medical revisions, adequate and prompt medical treatment with access to medicines when required, and even specialized attention according to the individual's particular physical or mental health necessities in such circumstances. The State is obligated to guarantee that the situation of deprivation of liberty does not imply de facto o de jure discrimination in access to health care, which means that it must guarantee, at least, reasonable levels of availability, accessibility, acceptability and quality of such health facilities, goods or services in relation to people in detention.

157.  The Istanbul Protocol establishes that it is a gross contravention of health-care ethics to participate, actively or passively, in torture or condone it in any way.Footnote ²⁹⁵ Principles of medical ethics make clear that health professionals have a moral duty to protect the physical and mental health of detainees, and that assessment of detainees’ health in order to facilitate punishment or torture is clearly unethical.Footnote ²⁹⁶ In this regard, participation in torture includes “evaluating an individual's capacity to withstand ill-treatment; being present at, supervising or inflicting maltreatment; resuscitating individuals for the purpose of further maltreatment or providing medical treatment immediately before, during or after torture on the instructions of those likely to be responsible for it; providing professional knowledge or individuals’ personal health information to torturers; and intentionally neglecting evidence and falsifying reports, such as autopsy reports and death certificates.”Footnote ²⁹⁷

158. To safeguard against the torture and physical or mental abuse of prisoners, it is crucial for health professionals providing medical care to persons in State custody to operate with due autonomy and independence, free from any form of interference, coercion or intimidation by other authorities.Footnote ²⁹⁸ In this regard, health professionals cannot be obliged by contractual or other considerations to compromise their professional independence,Footnote ²⁹⁹ and doctors working for State security services must refuse to comply with any procedures that may harm patients or leave them physically or psychologically vulnerable to harm. Where the detainee is a vulnerable adult, doctors have an additional duty to act as an advocate.Footnote ³⁰⁰ Doctors also have a duty to speak out and to report any unethical, abusive, or inadequate treatment of patients by members of their employing security services, but without exposing patients, their families, or themselves to foreseeable serious risk of harm.Footnote ³⁰¹

5. Particular considerations regarding freedom of religion and belief in detention

159. In relation to religion, the IACHR's Principles provide that detainees shall have the right “to participate in religious and spiritual activities and to practice traditional rites.” Further, prisoners shall have the right to food “with due consideration to their cultural and religious concerns.”Footnote ³⁰² Similarly, the Istanbul Protocol clarifies that “violation of taboos” and “behavioral coercion, such as forced engagement in practices against the religion of the victim (e.g. forcing Muslims to eat pork),” may be considered methods of torture.Footnote ³⁰³ The Commission has previously considered that respect for freedom of religion requires States to ensure that laws or methods of investigation and prosecution are not purposefully designed or implemented in a way that distinguishes to their detriment members of a group based upon a prohibited ground of discrimination, such as religious beliefs, and to guarantee that methods of this nature are closely monitored and controlled to ensure against human rights infringements.Footnote ³⁰⁴

160. The IACHR recalls that, according to the Human Rights Committee, the freedom of religion or belief “may be exercised either individually or in community with others and in public or private;” although restrictions may be permissible if they “are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others,” they may not be imposed “for discriminatory purposes or applied in a discriminatory manner.” In the case of persons deprived of liberty, the Committee states that such situations must not impair the right “to manifest their religion or belief to the fullest extent compatible with the specific nature of the constraint (measure).”Footnote ³⁰⁵ Similarly, the Special Rapporteur on Freedom of Religion or Belief has asserted that this right has a multifaceted nature and encompasses a broad range of acts: “it empowers human beings in the entire sphere of religious and non-religious convictions, conscience based positions and religious practices,” and it also “covers all aspects of religious and belief-related life: not only the ‘believing’, but also the ‘belonging’ and the ‘behaving’, that is, individual and community practices connected with convictions and traditions”Footnote ³⁰⁶. In this sense, the IACHR considers that no one is required to justify the exercise of his or her freedom of religion or belief, even if deprived of liberty, and that this must be respected as inherent in all human beings. Further, when considering discrimination on the basis of religion or belief, it is necessary to evaluate not only formal but substantive equality, which includes indirect and structural discrimination, and may include the adoption of measures of reasonable accommodation.

6. The right to private and family life in the context of detention

161. The IACHR has established that, in light of the exceptional circumstances that imprisonment creates, the State is obligated to take steps to effectively ensure the right to maintain and cultivate family relationships.Footnote ³⁰⁷ Indeed, it has found that the right to family and family-life “is a right so basic to the Convention that it is considered to be non-derogable even in extreme circumstances.”Footnote ³⁰⁸ The Commission has previously considered that “[alt]hough imprisonment necessarily restricts the full enjoyment of the family by forcibly separating a member from it, the state is still obliged to facilitate and regulate contact between detainees and their families and to respect the fundamental rights of all persons against arbitrary and abusive interferences by the state and its public functionaries.”Footnote ³⁰⁹

162. In this respect, “the Commission has repeatedly indicated that visiting rights are a fundamental requirement for ensuring respect of the personal integrity and freedom of the inmate and, as a corollary, the right to protection of the family,”Footnote ³¹⁰ and fundamental to the protection of dignity and humane treatment of persons deprived of liberty.Footnote ³¹¹ As such, the State must create the conditions necessary to enable contact between detainees and their families (e.g. via mail, visits, and telephone calls), and correct all structural deficiencies that keep contact and communication between inmates and their families from taking place on a sufficiently regular basis under secure conditions that respect their dignity.Footnote ³¹²

7. Torture and other cruel, inhuman, or degrading treatment or punishment of Mr. Ameziane

1. Lack of an effective legal remedy to challenge Mr. Ameziane's detention

216. As addressed above in section B of this chapter, Mr. Ameziane's detention at Guantánamo Bay was arbitrary by any measure of international human rights or humanitarian law. This fact is intimately related to Mr. Ameziane's lack of effective access, throughout his time in detention, to an effective legal remedy to challenge and determine the legality of his detention. This is effectively summarized by the fact that, during nearly twelve years of detention, he never received a hearing on the merits of his habeas corpus petition, making manifest the ineffectiveness of the remedy—which should be decided expeditiously—as applied in this case.

217. Moreover, as determined in the findings of fact, the U.S. acted intentionally throughout this time to prevent Mr. Ameziane from receiving a decision on the merits of the legality of his detention, by holding him incommunicado, by creating purported substitute review processes that did not adequately guarantee due process, by officially denying his legal right to seek habeas corpus via Executive Order and statutory law, and through litigation tactics (concretely, the years-long stay of his case).

218. In particular, the U.S. held Mr. Ameziane virtually incommunicado from January 2002 to June 2004 at Kandahar airbase and Guantánamo Bay—in a context in which the policy of the U.S. government at the time was to deny that any regime of law, domestic, international, or foreign, applied to Mr. Ameziane's detention, and to deny him access to any legal authority to determine the legality of his detention. Following the Supreme Court's decision in Rasul v. Bush in 2004 granting access to habeas corpus for Guantánamo detainees, the State acted to deny him meaningful review of his detention first, by creating “Combatant Status Review Tribunals” and “Administrative Review Boards” that failed to comport with basic guarantees of due process and failed to determine his status under international law, and second, by passing the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006, which purported to strip the federal courts of jurisdiction to hear his habeas case. Following the Supreme Court's reaffirmation in Boumediene v. Bush in June 2008 that the federal courts have the power to hear habeas cases from Guantánamo, the litigation of Mr. Ameziane's case resumed.

219. However, from October 2008 on,Footnote ³³⁶ the U.S. government maintained the position in federal court that Mr. Ameziane was not properly detained under domestic law—for which reason, it claimed, the litigation of his habeas corpus claim was unnecessary. The government secured an indefinite stay of Mr. Ameziane's habeas case in May 2009, and an order definitively preventing him from speaking publicly about his clearance for transfer in January 2010. Having effectively blocked Mr. Ameziane from obtaining his liberty either by litigating his case or by securing third-country resettlement, the State remained obligated to take the necessary steps to release Mr. Ameziane from its custody as soon as possible. However, the Executive branch did not, as far as the facts available to the Commission indicate, ever take any concrete action to do so: the Legislature acted during this time to create procedural obstacles to Mr. Ameziane's release; and over five years, the courts failed to effectively supervise the progress of the Executive in releasing Mr. Ameziane. His habeas case was ultimately dismissed in 2014 as moot, because he was no longer in detention.

220. Throughout the litigation associated with his detention, moreover, a series of defects in due process guarantees are evident. Most prominently, Mr. Ameziane's right to counsel was explicitly denied during his incommunicado detention. Mr. Ameziane additionally alleged deliberate interference in the lawyer–client relationship by Guantánamo guards during his years in detention, as well as regular interrogation about what he had communicated to his lawyers. He related that “Sometimes they would say, for example, ‘You have a reservation today.’ Reservation to us meant interrogation, so we would refuse, only to find out later that it was supposed to be a meeting with our lawyers.” He further alleged that his transfer to solitary confinement in Camp 6 was possible retaliation against him for litigating his habeas case.

221. Additionally, Mr. Ameziane's legal and non-legal materials were confiscated by U.S. authorities during a raid on his cell during the April 2013 hunger strike, raising serious concerns about respect for the confidentiality of those documents and respect for the lawyer–client privilege. Mr. Ameziane was subjected to CSRT and ARB review proceedings that lacked basic guarantees, including the right to counsel and to review evidence against him. Finally, his right to a decision on the merits of his case within a reasonable time period was evidently denied because his case was never decided on the merits, but rather dismissed as moot nine years after it was filed.

222. In sum, from 2002 to 2008, the State sought to deny the existence of Mr. Ameziane's legal right to an effective judicial remedy to challenge his detention through Executive proclamation, legislation, and litigation; from 2008 to 2013, the State admitted that Mr. Ameziane was not legally detained, but failed to take any action to free him, until finally returning him to his home country where he feared torture. Throughout his detention, the State created obstacles to the vindication of this right so extreme that Mr. Ameziane was ultimately prevented from ever receiving a judicial decision on the merits as to the legality of his detention, including serious interferences with his due process rights. For these reasons, the Commission concludes that the United States is responsible for the violation of the right to due process and to an effective remedy, established in articles XXVI and XVIII of the American Declaration, against Djamel Ameziane.

2. Lack of an effective remedy to challenge conditions of confinement at Guantánamo

223. Prompt and effective judicial oversight of detentions is essential to protect the well-being of detainees while they are wholly within the control of the State and therefore particularly vulnerable to abuses of authority. The IACHR has previously found that prisoners at Guantanamo have been prevented from litigating any aspect of the conditions of their detention before federal courtsFootnote ³³⁷—at least until 2014, after Mr. Ameziane's forced transfer from Guantánamo—and concluded that the prohibition on litigating any aspect of the conditions of detention at Guantánamo before federal courts “constitutes per se a violation of one of [the detainees’] most fundamental human rights,”Footnote ³³⁸ the right to an effective remedy.

224. The Commission reaffirms this finding here with respect to Mr. Ameziane, and finds that the official denial of the existence of any legal remedy to challenge his conditions of detention and inhumane treatment in detention constitutes both a violation of the right to due process and to an effective remedy, established in articles XXVI and XVIII of the American Declaration, as well as a root cause of virtually all of the violations described above in section C of this chapter regarding torture, cruel, inhuman, and degrading treatment, and inhumane conditions of detention, as it denied him any effective opportunity to vindicate those rights and challenge, prevent, or halt those violations.

3. Lack of effective civil remedies to receive reparations for torture, arbitrary detention, and other claims

225. It is a basic principle of inter-American human rights law that in order to find that an effective remedy for a human rights violation exists, the remedy must also be sufficient to obtain reparation for the harm caused. In this respect, it is apparent that no effective remedy exists in domestic law to vindicate any of the violations declared in this report, because to date, 16 years after his initial detention, Mr. Ameziane has been unable to access any such remedy, and every indication of domestic law is that no such remedy is meant to exist.

226. In particular, as the Commission found in the section on proven facts, the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 contain broad and retroactive language stripping the federal courts of jurisdiction to hear “any other action against the [U.S.] or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of [a non-U.S. citizen]” determined to be an “unlawful enemy combatant,” and creating a complete defense to civil or criminal actions against U.S. agents for harms relating to “detention and interrogation of [non-U.S. citizens].” These provisions, particularly taken together, appear to foreclose the possibility of any effective remedy that could result in reparations for former Guantánamo detainees, by purporting to strip the federal courts of jurisdiction over any such claims and by creating a complete defense for the State agents involved. And indeed, the Commission has not received to date, from any party, any indication that an effective domestic remedy to receive reparation for the human rights violations perpetrated against Mr. Ameziane in State custody exists or can be reasonably foreseen to exist.

227. The Commission finds that the State has acted intentionally to deny via legislation any potential effective remedy for the multiple grave human rights violations perpetrated against Mr. Ameziane in U.S. custody. The Commission concludes that the United States is responsible for the violation of the right to due process and to an effective remedy, established in articles XXVI and XVIII of the American Declaration, against Djamel Ameziane.

4. Lack of effective remedies to investigate and punish torture and other grave human rights violations

1. The prohibition of refoulement in inter-American jurisprudence and other international instruments

256. The principle of non-refoulement refers to the prohibition on the transfer of a person to a country or territory where they would be likely to face persecution,Footnote ³⁷⁷ torture, or cruel, inhuman or degrading treatment or punishment. Because this prohibition relates to the protection of the most fundamental and non-derogable rights, it is additionally considered to reflect a norm of jus cogens,Footnote ³⁷⁸ including by the Inter-American Court.Footnote ³⁷⁹ In this regard, the Commission has previously held variously that this guarantee is reflected in article XXVI of the American Declaration (non-imposition of cruel, infamous, or unusual punishment),Footnote ³⁸⁰ as well as article I where the individual's right to life or personal integrity is violated upon return, and article XVIII where the right to due process is not respected in the process of return.Footnote ³⁸¹

257. The Commission recalls that when interpreting and applying the provisions of inter-American human rights instruments, it is both appropriate and necessary to take into account developments in the field of international human rights law since adoption of the American Declaration, as well as Member States’ obligations under other human rights law treaties and related bodies of law, such as humanitarian law and international refugee law,Footnote ³⁸² which together create an interconnected and mutually-reinforcing regime of human rights protections (see supra section A of this chapter). In this regard, the Commission notes that for the purposes of the present case, the United States’ non-refoulement obligation is additionally expressly recognized in its obligations under the Convention Against TortureFootnote ³⁸³ and the 1967 Protocol to the Refugee Convention,Footnote ³⁸⁴ to which it is Party.Footnote ³⁸⁵

258. The Commission will therefore evaluate the State's compliance with its non-refoulement obligations and the American Declaration here in light of the jus cogens status of the norm under customary international law, understanding that these developments since the adoption of the American Declaration reflect the fullest expression of the norm and the most adequate statement of the current state of international and inter-American human rights law. The Commission considers that the incorporation of the jus cogens prohibition of refoulement is a textbook example of the proper interpretation and application of the American Declaration in line with the currently-existing corpus juris of international human rights law.

259. The Commission has previously upheld the prohibition of refoulement in a variety of cases involving the deportation or threatened deportation of migrants, both in cases involving claims of asylumFootnote ³⁸⁶ and cases involving other potential threats to life or personal integrity.Footnote ³⁸⁷ It has likewise consistently called on the U.S. to respect the principle of non-refoulement with respect to all Guantánamo detainees; in Resolution 2/06, the Commission stated that “where there are substantial grounds for believing that [a detainee] would be in danger of being subjected to torture or other cruel, inhuman or degrading treatment or punishment, the State should ensure that the detainee is not transferred or removed and that diplomatic assurances are not used to circumvent the State's non-refoulement obligation.”Footnote ³⁸⁸ This request was reiterated in precautionary measure 211/08 granted on behalf of Djamel Ameziane, noting his status as a member of Algeria's ethnic Berber minority.Footnote ³⁸⁹ In this regard, the Commission has previously concluded that “[f]orced transfers of Guantanamo detainees who present claims of fear of persecution or of being subjected to torture or other cruel, inhuman or degrading treatment or punishment, are a breach of precautionary measure 259/02 and also a violation of the United Nations Convention Against Torture, ratified by the United States in 1994.”Footnote ³⁹⁰

2. The obligation to ensure due process to evaluate claims of possible refoulement

260. The protection of fundamental human rights, such as the rights to life and personal integrity, also presupposes the right to judicial protection in order to make such rights effective. In particular, it implies the right to judicial process to protect the same. As regards the right to seek asylum and to non-refoulement, the Commission has found that the right to a hearing for asylum-seekers is clearly established in international law.Footnote ³⁹¹ For example, the Commission has found that the summary interdiction and repatriation of Haitian refugees to Haiti without making an adequate determination of their status, and without a hearing to ascertain their status as “refugees,” violated their right to seek asylum, and their interdiction their right to personal liberty, in violation of the American Declaration.Footnote ³⁹²

261. As the Inter-American Court has recognized, the determination of a non-refoulement claim, like the determination of refugee status, “entails an assessment and decision on the possible risk of affecting [a person's] most basic rights, such as life, and personal integrity and liberty. In this way, even if States may determine the proceedings and authorities to implement that right, in application of the principles of non- discrimination and due process they must ensure predictable proceedings, as well as coherence and objectivity in decision-making at each stage of the proceedings to avoid arbitrary decisions.”Footnote ³⁹³ In particular, compliance with the non-refoulement obligation “necessarily means that such persons cannot be […] expelled without an adequate and individualized analysis” of their case, which includes the right to review of any decision.Footnote ³⁹⁴

262. The Commission considers that key procedural guarantees in such a proceeding include, for the purposes of the present case,Footnote ³⁹⁵ the right to a hearing and to a duly founded decision, as well as the right to appeal said decision. In this regard, the Commission considers that the appeal of a decision to deport, transfer, or otherwise effect the return of a person must have suspensive effects (i.e. the execution of any deportation, transfer, or other order must be stayed during the review), and must be carried out by an authority that is independent of the detaining and/or prosecuting authority, in order to comply with minimum guarantees of due process. The Commission recalls that a State's compliance with these procedural rights is essential to an analysis of whether a decision to effect the return of a person to another country or territory is compatible with the principle of non-refoulement. That is, these procedural guarantees apply and may be sufficient to find a violation of the principle of non-refoulement, independent of any later finding that an act of torture, persecution, or violation of the right to life actually occurred.Footnote ³⁹⁶ Moreover, the Commission reiterates that where a likelihood of persecution, torture, or other CIDT exists, the sufficiency, clarity, and reliability of diplomatic or other assurances that an individual will not be subject to torture or CIDT must be fully assessed, taking into account the past behavior of the State in question.Footnote ³⁹⁷

3. Refoulement of Mr. Ameziane

263. In the present case, while the State described at length its policy “not to [effect the return] of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture,” as well as the factors it takes into account when evaluating a claim of potential torture in a Guantánamo detainee's home country, it provided no indication of the concrete evaluation it made in Mr. Ameziane's case. In this regard, the Commission has no evidence before it indicating the actual existence or contents of an individualized, duly founded decision to return Mr. Ameziane to Algeria, other than the affirmations made by the State in the merits hearing.

264. Furthermore, Mr. Ameziane was prohibited from judicially challenging his transfer to a territory where he feared torture by the prevailing D.C. Circuit precedent of Kiyemba II, which held that “The Government has declared its policy not to transfer a detainee to a country that likely will torture him, and the district court may not second-guess the Government's assessment of that likelihood. Nor may the district court bar the Government from releasing a detainee to the custody of another sovereign because that sovereign may prosecute or detain the transferee under its own laws.”Footnote ³⁹⁸ This express preclusion of judicial review of cases of potential refoulement constitutes a plain violation of the rights to due process and to an effective remedy, in connection with the obligation of non-refoulement. The absence of these two basic guarantees of due process—the right to a hearing and an individualized, duly founded decision, and the right to review—is sufficient to find a violation of the obligation of non-refoulement in this case.

265. In addition to the lack of evidence regarding a duly founded decision regarding the propriety of Mr. Ameziane's return to Algeria, and the clear lack of judicial review to evaluate such a decision—which are sufficient to make a finding that Mr. Ameziane was refouled to Algeria—, the Commission considers that there are also important elements in this case indicating the actual existence of a substantial risk of torture, other inhumane treatment, or persecution that a reasonable decisionmaker should have evaluated and could have formed the basis for a decision not to return Mr. Ameziane. These include the numerous axes of potential persecution he alleged—as an ethnic Berber, as a practicing Muslim in his family's hometown of Kabylie, as a person who had previously sought refugee status abroad, and as a former Guantánamo detainee, among others—, the Algerian Ambassador's statement that “all Algerian citizens in Guantánamo would be considered serious security threats, and would be subject to further detention and investigation if returned,” the incarceration and prosecution of other Algerian former Guantánamo detainees upon return, including Abdul Aziz Naji, and the particular cruelty of returning a person to a country where his interrogators have been telling him for years that he will be tortured.

266. In light of the foregoing, the Commission finds that the absence of a duly motivated decision and the lack of effective judicial review of a decision to return Mr. Ameziane, as a person who expressed a well-founded fear of persecution, torture, or other cruel, inhuman or degrading treatment or punishment in his home country, to Algeria, constituted a violation of the principle of non-refoulement in violation of the American Declaration, in connection with the rights to due process (Art. XXVI) and to an effective remedy (Art. XVIII).