NAIROBI, Kenya—American diplomats on Wednesday paid their first visit to an American who was detained five weeks ago by Ethiopian authorities after a middle-of-the-night secret transfer from Kenya and said he was in good health.
But U.S. officials couldn't secure the release of Amir Mohamed Meshal, 24, of Tinton, Falls, N.J., who was arrested at the Somali-Kenyan border after the U.S.-backed Ethiopian army toppled the Islamist government in Somalia.
Instead, Meshal will appear at an Ethiopian hearing to determine whether he can be detained as a prisoner of war, said a U.S. official, who spoke on condition of anonymity because of the sensitivity of the case.
In Nairobi, U.S. Ambassador Michael Ranneberger praised the deportations of Meshal and some 80 other detainees who were arrested on the Kenyan-Somali border, saying Kenyan officials had complied with their own laws.
Kenyan officials have said the prisoners—including several Kenyans who were living in Somalia—entered Kenya illegally because the border was closed. They said national immigration laws allow for the detainees to be returned to the country they came from.
"The Kenyans have carried out security operations based on their own security interests," Ranneberger said at a news conference. "It's my understanding that the Kenyans have dealt with all of those people in a way consistent with Kenyan law." He refused to say whether Meshal, whose deportation the State Department said it had tried to block, was among those expelled.
But several U.S. legal experts said American officials who questioned Meshal while he was in Kenya may have violated U.S. law as well as international conventions that ban torture and protect refugees who escape to a neighboring country.
"It's a very serious concern," said Jonathan Hafetz of the Brennan Center for Justice at the New York University School of Law. Hafetz is providing legal assistance to Meshal's family in New Jersey.
FBI agents who interviewed Meshal in Nairobi in early February believed he was a "jihadist" who'd trained in al-Qaida camps in Somalia, according to an internal U.S. government e-mail that was read to McClatchy Newspapers by officials at two different U.S. agencies.
But the agents didn't have enough evidence to charge him with a crime if he returned to the United States. They left him in the custody of Kenyan authorities, who secretly deported him to Somalia on Feb. 10.
He was then turned over to Ethiopian forces, which had launched a U.S.-backed offensive to crush the Council of Islamic Courts, a coalition of Somali militias that the Bush administration has accused of being an al-Qaida front.
Hafetz and other international legal experts said that the deportations of Meshal and other detainees to Somalia appear to have broken the Convention Against Torture. The FBI also may have violated Meshal's U.S. constitutional rights, they said.
The Convention Against Torture bars the deportation of people to countries where there are "substantial grounds" to believe they'd be in danger of being tortured or abused.
Ethiopia also has a bleak human rights record; the State Department and human rights organizations have accused the nation of abusing and torturing detainees.
Paul Williams, a former State Department lawyer, said the FBI may have violated Meshal's constitutional right to due process by returning him to Kenyan authorities after twice taking him out of prison and interrogating him at a hotel.
"You can make an argument that . . . he had the right to due process when he was in the physical custody of the FBI," said Williams, who heads the Public International Law and Policy Group, which provides free legal aid to developing nations involved in conflicts. "Your constitutional right to due process travels with you and your citizenship. The moment he was in FBI custody, he had (U.S.) legal rights and the FBI acted illegally by passing him back to the Kenyans."
Richard Kolko, an FBI spokesman, denied that the FBI ever had custody of Meshal.
"Mr. Meshal was not in FBI custody when interviewed in Kenya, nor are there any outstanding U.S. charges against him," Kolko said. "As such, his situation is in the hands of the foreign government."
Tom Casey, a State Department spokesman, reiterated an earlier statement that Meshal's deportation took U.S. officials by surprise and was contrary to their request that he be released to return home. He said a formal protest was lodged with the Nairobi government.
Another American, Daniel Joseph Maldonado, also was arrested crossing into Kenya from Somalia, but the FBI said he had admitted to being trained at an al-Qaida camp in Somalia, and he was released to U.S. custody, flown back to Texas and accused under U.S. anti-terrorism laws.
Meshal told Kenyan human rights activists who interviewed him in custody and other detainees who since have been freed that the FBI agents threatened to send him back to Somalia if he didn't admit that he was associated with al-Qaida.
Edwin Williams, an attorney in New York who represented detainees held at Guantanamo Bay, Cuba, said that such a threat—if it was made—could be considered a form of torture.
The FBI denied that its agents made such a threat.
Hafetz said he was examining possible legal action against the U.S. government.
"We're exploring all options at this point, including the possibility of grave violations of an American citizen's rights and applications for redress," he said.
On Wednesday, 16 people were killed in Somalia's bloodiest day since the war began in December as masked Islamic insurgents dragged the half-naked corpses of an Ethiopian soldier and a Somali soldier through the capital of Mogadishu and set them afire.
The conditions of prisoners left in Somalia remained unknown as Mogadishu erupted in violence between militant groups and the Ethiopian and Somali military forces struggling to pacify the city. Hospital officials said that 16 people were killed and about 100 were wounded throughout the city.
(Landay reported from Washington.)
(c) 2007, McClatchy-Tribune Information Services.
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