Thursday, July 10, 2014

DoD Policy Gave Al Qaeda Members Money Back in Iraq, but Keeps Money of Cleared & Transferred GTMO Detainees

On the heels of the U.S. government continuing to claim that GTMO detainees are still not "persons" under RFRA even though for-profit corporations are, Jason Leopold has a new piece on Vice News called "By Asking for His Wallet Back, a Gitmo Detainee May have Revealed US War Crimes" that describes the U.S. government's refusal to return seized money to former GTMO detainee Djamel Ameziane who is now back home, and destitute, in Algeria.  The government's refusal is based on a purported "policy" (that it has not produced) not to return seized money to released GTMO detainees despite the clear rule under the law of armed conflict that money of detainees remains their personal property and should be returned to them.  The filings by Ameziane's lawyer (see the motion for return of property) flesh out this basic, and very clear, rule in the 1907 Hague Regulations, the 1949 Geneva Conventions, and customary international law.

The government's response (see gov't opposition here) is not to argue in any depth that their "policy" conforms with international law, but rather that the detainees have no right under current law and D.C. Circuit case law to seek a court's help in challenging it.  The government's only justification for this policy is to prevent the detainee's personal money - even if all they had were very small sums - from being used "in a manner that would adversely impact the safety and security of the United States" by, for example, funding "terrorism."

There are a lot of problems with the government's position, but what I want to focus on here is that this "policy" for GTMO detainees appears to be the exact opposite of the policy for detainees in Iraq, even if they were found to be members of Al Qaeda.  As explained below, provided the sum was less than $5000, the U.S. military, in accordance with the law of armed conflict, would automatically return seized money to released detainees (of many different kinds) in Iraq, which makes the GTMO policy all the more puzzling and unjustified.

In particular, what purports to be the Standard Operating Procedures for Iraqi detention operations under Task Force 134 dated February 2008 (posted by Wikileaks here) contains detailed guidance on the treatment of property seized from detainees in U.S. custody in Iraq (see pp. 42-50), including, especially, the impounding, receipting, and ultimate return of seized detainee money.  The Task Force 134 policy attempts to follow fairly closely the law of armed conflict standards and normal U.S. military regulations for the disposition of detainee currency.  The policy also contains a reasonable exception to the procedure in cases in which a detainee is found with "large sums of Allied/U.S. currency or negotiable instruments" (defined to mean $5000 or more) whereby an investigation is undertaken to see whether the detainee in fact has a personal legal claim to the currency.  This is consistent with the law of armed conflict which protects only "personal" property (as opposed to enemy government property that might be in a detainee's possession) and is reasonable in that in only is triggered by large sums (unlike in the case of Ameziane and other GTMO detainees).

In addition to being yet another troubling departure from legal standards for GTMO detainees, Leopold's piece also quotes Eugene Fidell from Yale Law School who makes an even more compelling argument that the GTMO policy is simply mean spirited. "To take this person's entire net estate and just hold onto it demeans us."

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