Family of Gitmo detainee sues Kenya gov't for $30M

AP News
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Posted: Dec 10, 2009 1:03 PM

The family of a man held at Guantanamo Bay for his alleged involvement in an attack on a Kenyan hotel and an attempt to bring down an airliner is suing the Kenyan government for $30 million in damages, claiming wrongful detainment and torture.

Mohamed Abdulmalik, 37, is accused by American officials of involvement in the 2002 attacks, and the U.S. says he is a member of al-Qaida.

His family maintains he was held in Kenyan custody without charge longer than Kenyan law allows and was tortured by Kenyan officials. U.S. officials later took him from Kenya, to Djibouti, to Afghanistan and then to Guantanamo Bay, Cuba, a human rights group says.

The case raises questions about the legal justifications for Abdulmalik's U.S. detention, and why the Kenyan was flown to so many U.S. bases.

U.S. officials, who have held Abdulmalik without charge since early 2007, have declined to release even basic information about him. The Department of Defense has declined to release a transcript of his "enemy combatant" hearing at the U.S. base in Cuba, as they have done for other prisoners.

Army Maj. Tanya Bradsher, a Pentagon spokeswoman, said Thursday that the transcript of his review tribunal was still classified.

Reprieve, a London-based human rights group that has intervened on detainees' behalf, says Abdulmalik's case stems from a coerced confession.

"You can't take a Kenyan citizen off Kenyan streets, beat him in Kenyan jails, and when a Kenyan court won't convict, hand him to U.S. soldiers," Reprieve's Cori Crider wrote in an e-mail.

She said that while Kenya denies handing him to the United States and also has disputed that he is Kenyan, her group has declassified documents showing that both these claims are false.

The lawsuit names Kenya's Attorney General and police commissioner as the key defendants. It was filed on Nov. 18 and the first hearing on the case had been scheduled for Thursday, but the case was postponed until January because the judge assigned to the case went on leave.

The director of public prosecutions for the Attorney General's office, Keriako Tobiko, said he had not been briefed about the suit and could not comment. The prosecutor in charge of the case did not return a call seeking comment.

A human rights lawyer with the government-funded Kenya National Commission on Human Rights, Hassan Omar, said Kenyan laws are not well-equipped to handle acts of terrorism or terrorism suspects _ and neither are Kenyan police.

"Kenya needs anti-terror laws but not under the present arrangement of the police force. It is corrupt, unaccountable and has shown ... a total disregard of the rights of its own citizens," Omar said.

When the U.S. first took Abdulmalik into custody in 2007, the Department of Defense said he exemplified the "genuine threat that the United States and other countries face throughout the world in the war on terrorism. Due to the significant threat this terror suspect represents, he has been transferred to Guantanamo."

The Pentagon has said that Abdulmalik acknowledged involvement in the November 2002 attack on the Israeli-owned Paradise Hotel near Mombasa, Kenya, in which 13 people died, as well as an unsuccessful attempt to shoot down an Israeli airliner in 2002.

The Pentagon has previously identified him as Abdul Malik.

Abdulmalik's family wants a Kenyan court to declare his arrest, expulsion from Kenya and his detention at Guantanamo Bay as illegal and unconstitutional.

They are also seeking an order to force the Kenyan government to use all diplomatic channels with the U.S government to immediately release Abdulmalik from U.S. custody and organize his repatriation.

Crider said that Abdulmalik, while in Kenyan custody, was beaten and threatened with castration and rape and "was forced to confess to all sorts of crimes the Americans were looking for at the time." Crider said she believes he was transferred to U.S. custody because no Kenyan court would accept Abdulmalik's forced confessions.

"Then he got to Gitmo, and aside from the initial period of isolation, sleep deprivation, and intensive interrogation, he has pretty much been rotting, largely forgotten," Crider said.

Kenyan police have said they are not sure Abdulmalik is a Kenyan citizen because his fingerprints are not found in a national database. The anti-terror police unit also has claimed that Abdulmalik was released within 14 days _ within the confines of the law _ after his 2007 arrest and it says that he was not handed over to U.S officials.

In its lawsuit, Abdulmalik's family asks the court to force the Kenyan government to declare him a citizen and issue him a passport. Lawyer Mbugua Mureithi said the family has evidence that proves he is Kenyan.

"We are very optimistic about winning. We have done our legal research, which is backed by decisions made in other commonwealth jurisdictions," Mureithi said.

In November 2007, a Kenyan court ruled that it had no jurisdiction in Abdulmalik's case, but said Abdulmalik's rights had been infringed and suggested Kenyan law be changed to ensure the rights of such suspects. Relatives had filed a case demanding Malik be produced in court in Kenya to determine whether he was lawfully detained.

Darin Thompson, a U.S. attorney representing Abdulmalik in the United States, said he is not involved in the Kenyan lawsuit but that Abdulmalik's family has a strong case.

"If citizens don't take steps to call government to account when they violate their own rules, it does two things. One, it causes people not only in that country but around the world to lose confidence in that government," Thomspon said. "Second, it emboldens law breakers within governments to continue breaking laws."

Thompson said U.S. government conduct is not at issue in the Kenyan suit, but that the U.S. needs to make sure its pursuit of suspects in the war on terror doesn't encourage other governments to break their own laws.

Abdulmalik's sister, Miriam Mohamed, appealed to President Barack Obama to shut down the Guantanamo detention facility and free her brother.

"I am appealing to Obama, not because he is partly Kenyan, but to his humanity, to help my brother, who is suffering," she said, adding that her brother's freedom is more important than compensation.

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Associated Press Writer Ben Fox in San Juan, Puerto Rico, contributed to this report.