‘That’s just insane’: Australia’s secret deal to take in Rwandan guerillas
For more than a decade, the United States had a problem: three
Rwandan men, sitting in jail in Virginia, who had been accused of
brutally murdering tourists in Africa — but now had a chance of winning
release onto American streets.
The three had been rounded up following a bloody 1999 attack that made headlines across three continents, when two Americans and six other Western tourists on a gorilla-watching visit to the Ugandan rainforest were killed with machetes and axes. The crime was so horrific that U.S. prosecutors charged the men under terrorism statutes, extracted them from Rwanda and then took the rare step of demanding the federal death penalty.
But in 2006, the prosecution went off the rails: A judge in Washington ruled the men’s confessions were obtained through torture in Rwandan detention centers, and the case was dropped. The men fell into immigration purgatory, fighting their return to Rwanda out of fear they’d be mistreated by the government there, but lacking the right to stay in the U.S.
The three became examples of a thorny issue that arises when the U.S. takes custody of terrorism suspects abroad. Harsh treatment they received overseas, or claimed to receive, can derail the cases against them — but once they’re on American soil, U.S. law gives the government no clear Plan B. Much like the terrorism suspects being held at Guantanamo, they can languish in limbo for years without being convicted of any crime, becoming a frustration for authorities and a human-rights black eye for the U.S.
But in the case of two of the Rwandans, POLITICO has learned that the U.S. government solved the problem by relocating the men — thanks to an undisclosed deal with one of its closest allies. Last November, without any public announcement, two of them packed up their things at an immigration detention center in rural Virginia and prepared for a trip that must have been almost impossible for them to fathom. After over 15 years in U.S. custody, Leonidas Bimenyimana and Gregoire Nyaminani were headed for new lives in Australia.
The secret arrangement seems certain to spark controversy in Australia, where immigration and refugee policies have been a political tinderbox for nearly two decades — and which faces a national election Saturday. The transfer also sheds new light on the high-profile tensions between Donald Trump’s administration and the Australian government.
Under a murky pact struck between President Barack Obama’s administration and then-Australian Prime Minister Malcolm Turnbull in 2016, the U.S. agreed to take in as many as 1,250 migrants that Australia was holding in controversial offshore refugee centers, while Australia agreed to accept a smaller number of refugees in Central America as part of a U.S.-organized effort to relocate people fleeing drug-related violence. President Donald Trump tried to back out of the deal soon after taking office — prompting a heated phone conversation, one of Trump’s first foreign policy controversies in office, in which Trump said the deal made him look like “a dope,” and Turnbull pleaded with him not to abandon it.
While details of the so-called people swap remain classified, the leaders’ extraordinary exchange contained a little-noticed but cryptic remark by Turnbull, one that implied Australia was doing some significant but undisclosed favors for the Americans. “Basically, we are taking people from the previous administration that they were very keen on getting out of the United States,” Turnbull told Trump, according to a transcript of the call leaked to the Washington Post. “We will take more. We will take anyone that you want us to take.”
Two sources indicated to POLITICO that the Rwandan relocation was
discussed as a reciprocal gesture that could nudge the swap deal along,
although due to the unusual secrecy around the deal, it’s difficult to
know whether the transfer of the Rwandans was explicitly included in the
refugee tradeoff, or was arranged separately. Both sides had reason to
keep it quiet: Given their history, any public mention of the Rwandans
could have dramatically reshaped perceptions of the U.S.-Australia deal,
unleashed a backlash from survivors and family members of victims of
the 1999 attack, making the move far more politically costly for the
Australian side.
For survivors of the attack and families of the victims, emotions are still raw. “That’s just insane,” said Mark Ross, an American safari leader taken hostage and beaten with bamboo canes during the attack two decades ago, when informed of the relocation. “It’s almost like if you want to get out of a bad situation in a third-world country, murder someone from the country you want to go to, and then you’ll get there — which is just so ironic.”
* * *
The March 1, 1999 attack on the Bwindi Impenetrable National Park was shocking for its brutality. Vacationers, some on an upscale Abercrombie & Kent safari, came to the preserve to enjoy the idyllic scenery and to observe the rare subspecies of mountain gorilla featured in the film “Gorillas in the Mist.” Tourists expecting to be awakened by the sounds of the forest instead heard gunfire and saw a band of 100 to 150 fighters — armed with AK-47s as well as makeshift weapons such as spears — charging into the campground and rounding up petrified visitors.
“I was listening to the birds and watching the light slowly come up when I heard trees splitting and crashing down. It was not windy. There was no storm. So, it surprised me. Then, I heard shots,” recalled Ross, who has spent decades on African safaris as guide and pilot, and was in the park overnight accompanying a small tour. “They had just shot the senior warden and killed him. Eventually, they poured fuel on him and burned him … in front of some of us.”
Within minutes, all hell broke loose at the mountainside camp where Ross’s group and a couple dozen other Westerners were staying. “I heard yelling down below us. Rebels came up the hill shooting at us. A bullet went past my right shoulder. I heard it slap the branches and leaves and then I was taken prisoner,” Ross told POLITICO.
It was the beginning of a terrifying, 18-hour ordeal. Their captors were members of the Army for the Liberation of Rwanda, an offshoot of that country’s feared Interahamwe militia, who wanted the American and British governments to end their aid to the Tutsi-led government in Rwanda. The rebels seemed to have a plan to kill any American and British visitors they found, while sparing others. Some tourists scattered as soon as the attack began, while a French diplomat managed to negotiate the release of others, but about 17 were taken on a forced, shoeless jungle march toward the border with the Democratic Republic of the Congo.
One American woman managed to quit the march by faking an asthma attack. Others were left behind on the march because they couldn’t keep up. Eventually, Ross persuaded the fighters to abandon many of the hostages and let them go to deliver a message about the rebels’ goals. But on the return to the campground, the tourists came upon a horrific scene: Two women who turned back from the march were dead. Among them was one of the Americans, Susan Miller, 42, an executive at Intel in Oregon.
Nearly all the victims were bludgeoned. The indictment later filed in the U.S. case also alleged that Miller was raped. Ross said the rebels wanted to keep shooting to a minimum to avoid alerting Ugandan government troops or police while the raid was underway. “This is the punishment for the Anglo-Saxons who sold us out,” a note the rebels left at one of the murder scenes said.
The FBI and Scotland Yard swung into action, traveling to the scene in Uganda to investigate the killings and hostage-taking of U.S. and British citizens, but the investigation proved challenging, as no eyewitnesses among the tourists had lived to attest to the murders. The FBI even offered a $5 million reward for information leading to suspects in the killings. While some individuals in neighboring Congo were reportedly seen with belongings looted from the Westerners, there was little or no physical evidence linking suspects to the murders.
Rwandan officials began canvassing the refugee camps and detention centers in Rwanda where Hutus, including former ALIR fighters, were being held. They looked for individuals who had mentioned the Bwindi attack or said they knew of others who did. Suspects and informants were moved to the Kami Military Camp, outside the Rwandan capital of Kigali, then brought to a police headquarters in the city for questioning by the Americans.
Bimenyimana, Nyaminani and a third man, Francois Karake, all confessed to their involvement in the murders of the Americans, U.S. prosecutors said. In mid-2002 and early 2003, the Justice Department brought sealed indictments against the men for the murders of the two Americans, Haubner and Miller.
After protracted negotiations with the government of Rwanda, the three defendants were flown out of the country. They made their first U.S. court appearance in Puerto Rico, and then in federal court in Washington, D.C. At a March 2003 press conference at Justice Department headquarters, the Bush administration portrayed the case as striking a blow for the U.S. in the Global War on Terror. "This indictment should serve as a warning," said Michael Chertoff, who was then chief of the Department of Justice’s Criminal Division. "Those who commit acts of terror against Americans will be hunted, captured and brought to justice."
A year and half later, the Justice Department officially announced
that it was seeking the death penalty in the case, citing the
“especially heinous, cruel and depraved” acts involving “torture” of the
victims. Prosecutors said Bimenyimana, Nyaminani and Karake posed “a
continuing and serious threat to the lives and safety of other persons,
including … citizens of those countries which support the Rwandan
government.”
The men’s defense attorneys, however, told a different story. They said their clients’ alleged confessions were the product of torture by Rwandan officials, including the commander of the Kami camp, Capt. Alex Kbingo.
U.S. District Court Judge Ellen Huvelle held an extraordinary pretrial hearing that lasted 22 days over five weeks in May and June of 2006, featuring testimony from the defendants and Kbingo. The three defendants offered details: Nyaminani said he faced a form of torture known as “kwasa kwasa” in which a rope was used to tie one of his wrists over his shoulder to another behind his back. Bimenyimana claimed he was shackled and beaten with a sock containing a brick.
Prosecutors insisted that their stories were fabricated and self-serving. They said American officials had already interrogated each of the suspects in Rwanda and heard only a single claim of abuse: Nyaminani claimed that on one occasion where he failed to confess, Kibingo hit him four or five times on the lower back with a flip-flop. Even that seemingly minor incident was false, prosecutors insisted.
In August 2006, Huvelle, an appointee of President Bill Clinton, issued a painstaking and devastating 150-page opinion that torpedoed the government’s case. She said scars and other damage to the bodies of the three defendants amounted to “telltale signs of abuse.” Defendants testified they were kept in dark pits known as “go-downs.”
“Completely nonsensical … totally implausible,” the judge wrote about the testimony of the government’s key witness, Kbingo.
The situation had strong parallels to military tribunals at Guantanamo. Perhaps the suspects were guilty of this crime; perhaps not. As members of ALIR, they may well have been involved in brutality, even atrocities. But the torture Huvelle concluded they suffered in custody so tainted the case against them that their responsibility for the gruesome murders in the Bwindi forest would likely never be established.
Initially, prosecutors fought the ruling, appealing it to the D.C. Circuit and saying they remained convinced of the men’s guilt. “These were some bad, bad dudes,” said one former U.S. official involved in the case. Investigators said the defendants provided details about the victims that could only have been known to those at the scenes of the killings, but defense attorneys said those details might have been fed to the defendants by Rwandan interrogators.
Without the confessions, however, prosecutors stood little chance of proving their case. They soon dropped the appeal and moved to dismiss the case entirely, while leaving open the theoretical possibility of refiling it in the future.
By February 2007, the criminal case was over. But the defendants were not free men. Had they been American citizens, they would have walked out of Huvelle’s courtroom and onto the streets. But two of the men would remain behind bars for another 11 years — and the third even longer.
* * *
Before the criminal case was even complete, defense attorneys served notice that their clients wanted asylum in the U.S. — a kind of nightmare scenario that critics of U.S. terrorism prosecutions have long warned about.
The three said that as Hutus, they feared they’d face persecution if returned to Rwanda, whose government was now led by rival Tutsis. The men also feared being brought up on charges related to the murders, then subjected to a sham trial or further torture. The dispute crystallized into asylum cases in which the U.S. government fought to return the men to Rwanda and the men sought to stay in the U.S., or least not be sent back to the country of their birth. The court battle wound its way to the 4th Circuit in Virginia, teeing up an unresolved issue under U.S. law: whether Executive Branch officials have a free hand to credit another country’s assurances of humane treatment, which Rwanda was offering, or whether judges are entitled to examine the plausibility of such promises.
In March 2015, an array of human rights groups weighed in on behalf of the three Rwandans, warning about the dangers of allowing U.S. officials unfettered discretion to deport foreigners in similar circumstances. The onslaught of critical attention — much of it from organizations generally friendly to the Obama administration — seems to have prompted a scramble to reconsider the government’s stance in the case and to look for a way out. All sides asked the court to put off oral arguments and allow for talks about a settlement that would involve sending the men to a third country.
From the U.S. government’s perspective, there were strong reasons to explore such a deal — not least the prospect that an unfavorable ruling at the circuit or Supreme Court level could limit officials’ options in future cases. But finding a country to take the men proved daunting, former officials and people close to the three told POLITICO. Again, there were echoes of Guantanamo. Defense Secretary Donald Rumsfeld famously branded the war-on-terror prisoners sent there as “the worst of the worst.” When U.S. diplomats later came calling on foreign governments to take the men, Rumsfeld’s words proved a major obstacle to finding willing nations.
The U.S. decision to brand the Rwandans not only as murderers, but as
depraved killers worthy of the death penalty, similarly made it a tough
sale for State Department officials tasked with finding a country
willing to resettle the three. The case of the three Rwandans also
involved another complicating factor: citizens of Great Britain, New
Zealand and Uganda died in the Bwindi attack. Tourists from Canada,
Switzerland and elsewhere were among those taken captive for a time. If
the U.S. turned to some of its closest allies, it would be effectively
be asking them to take men once accused of butchering or kidnapping
their own citizens.
For more than three years, the court challenge to the planned deportation was deferred. Monthly reports filed with the court said negotiations were underway with an unidentified third country to take the men without disclosing the country. Finally, on November 8 of last year, there was a dramatic change: Bimenyimana and Nyaminani formally dropped their court cases, agreeing to a deal with the government under which they would never seek “re-entry” to the U.S.
But where were they going? On that, the court papers were silent. Officials at the Farmville, Virginia immigration detention center where the men had spent more than a decade said two of the men, Bimenyimana and Nyaminani, were “released,” but offered no other details. Officials at Immigration and Customs Enforcement referred questions to a Justice Department spokesperson, who declined to comment.
However, three people familiar with the case later told POLITICO that
Bimenyimana was sent to Australia. Two sources confirmed that Nyaminani
was also taken in by the Australians. Though their precise living
arrangements remain unclear, the men went to Australia voluntarily and
there’s no indication they were jailed or detained by authorities there.
In response to POLITICO’s request for an interview about the transfers, the Australian Embassy in Washington referred a reporter’s questions to the country’s Home Affairs Department, which declined to discuss the decisions involved. “The Department does not comment on individual cases,” a spokesperson said.
However, an embassy official sent an email statement responding in general terms about the country’s process for granting “humanitarian” visas in cases involving “persecution or discrimination that amounts to a gross violation of … human rights.” Pointing out that Australia plans to accept nearly 19,000 foreigners on humanitarian grounds this fiscal year, the official highlighted an official guide saying the process involves assessing the “character” of potential admittees and includes “checks related to national security, criminality, war crimes and crimes against humanity.” It also says that Australian officials work “closely with … international partners in conducting checks.”
* * *
For the United States, the deal solved two-thirds of the problem. The remaining Rwandan man, Francois Karake, is now being held in an Immigration and Customs Enforcement detention center about 20 miles west of downtown Miami. The facility, at the end of a road on the fringes of the Everglades and behind a military-style security checkpoint, holds hundreds of detained immigrants, including some of the most violent and emotionally troubled. Karake will turn 55 in June.
In phone interviews with POLITICO, Karake said that he, too, was considered for asylum in Australia. He recalled in broken English that, around last September, a woman from the Australian Embassy visited and told him he was being offered residence in Australia on “humanitarian” grounds.
“She said the Australian government will allow me to resettle in Australia,” Karake said. “She asked me questions for more than two hours — whether I would be happy to be an Australian. I said, ‘Yes.’” Australian officials declined to discuss the visit. U.S. Homeland Security officials also declined to comment about Karake’s status, and refused POLITICO’s request for an in-person interview with him.
Karake said the diplomat even discussed what benefits he’d be eligible for. “She said the Australian government will do everything possible to protect me and give me the help — for a full year,” he added. But, after the meeting a half a year ago, Karake heard nothing. Karake’s co-defendants boarded planes bound for that country. But Karake never got the call or even a firm no, he said.
It’s unclear why Australia balked at taking Karake, but one reason
may be an altercation he got into with a guard at the Farmville, Va.
immigration detention center in September 2015, as talks about resolving
the appeals were underway. “Mr. Karake became irate and attacked the
guard striking him multiple times on the head with his fists. He also
used a pencil to inflict wounds, as well as biting the guard,” a police
report says.
Karake was charged in a Virginia court with malicious wounding. The case was continued repeatedly before being dropped by a local prosecutor last March, shortly after Karake’s local defense attorney died suddenly at home. Karake was moved from Virginia to Florida a short time later.
U.S. officials working on resolving the Bwindi cases were aware of what they called the “pencil-stabbing” incident with Karake. The Australian diplomat’s visit to him last fall suggests the country was willing to consider taking him despite the episode. However, Australian officials would also have been aware that any indication of violence on the part of the Rwandans — beyond the original murder charges — would heighten the political risk of agreeing to take the men from the U.S.
Karake, now entering his 17th year in U.S. detention, closed a recent letter to POLITICO with a plea: “I am tiered [sic] and only want to be released as soon as possible.”
* * *
In Australia, the arrival of the Rwandans is not public knowledge, in keeping with the secrecy surrounding many of the U.S.-Australian interactions over refugee issues.
The decision to accept the two men poses obvious risks for the Australian leaders involved at various stages of the process, heightened by the extreme political pressure that has surrounded the immigration issue in that country for nearly two decades. At the time the U.S. began actively seeking a destination for the Rwandans, in 2015 and 2016, Australia was courting U.S. help to resolve a refugee-related crisis that had become a long-standing stain on its own international reputation: the country’s policy of sending boat-borne migrants to offshore island camps in Papua New Guinea and Nauru.
The air of desperation at the grim outposts was so thick that at least two prisoners set themselves on fire, with one dying, and about 50 more making other suicide attempts. The hard-line policy of keeping seaborne migrants in camps was driven by fear that allowing migrants easy entry to Australia by sea would unleash a massive wave of refugee boats. Scenes at the Australian-funded offshore centers fanned international outrage: More than 120 children were housed at the camps, with some as young as 8 or 10 eventually attempting “self-harm.” “Nauru refugees: the island where children have given up on life,” the BBC titled one story on the crisis last year.
That was the backdrop for Australia’s readiness to cut refugee deals with the United States.
“Turnbull was desperate,” University of Melbourne foreign policy analyst Jay Song said. “People were dying. There was mounting criticism among civil society, NGOs and academics … It looked really bad for the Australian government.”
“The Australians felt like they were making a pretty big ask of us … Ultimately, we were concerned about on some level being seen as validating the Australian policy, so in that context, we wanted them to do stuff,” the former official said. “We certainly encouraged them to do a lot of different things, [but] it was never a quid pro quo.”
During those talks, the ex-official said, the issue of the Rwandans was raised with the Australians. “This issue would be raised along with other issues,” said the ex-official, who asked not to be named and declined to elaborate on the Australians’ response. “This was absolutely brought up in lots of different conversations.”
Shortly after the U.S. election in 2016, Australia announced that the U.S. agreed to take in as many as 1,250 of the offshore migrants. The deal was quickly billed by the media as a “people swap,” but officials on both sides denied any explicit linkage between the U.S. and Australian actions. The terms of the refugee transfers are contained in two separate, parallel documents that remain classified. Former and current officials familiar with the negotiations refused to say whether the agreements mention the Rwandans.
Turnbull’s announcement of the deal five days after Trump’s surprise victory was long on celebration of the U.S.’s commitment to take in the refugees from Australia’s offshore camps and short on detail about what Australia had agreed to do in return. But the deal was soon on the rocks, thanks to Trump, who’d campaigned on reducing illegal immigration and the U.S.’s own intake of refugees.
When the two men spoke in late January 2017, Trump made clear he
viewed the deal to take Australia’s migrants as completely at odds with
the policies he was trying to advance. “This is a stupid deal. This deal
will make me look terrible,” Trump told Turnbull, according to the
transcript leaked to the Post. “This shows me to be a dope.”
Due to the unusual secrecy surrounding the deal, it’s unclear whether Trump knew something former U.S. officials have emphasized to POLITICO: that Australia’s pledges went beyond taking in the Central American migrants. It remains unclear precisely whom Turnbull was referring to when he sought to sell Trump on the pact by mentioning Australia taking individuals that the Obama administration was “very keen on getting out of the United States.”
Asked whether the transfer of the Rwandans was explicitly part of the deal, one source familiar with the situation pointed POLITICO to that portion of Turnbull’s comments and said, “The prime minister understood the deal completely. President Trump did not.”
It seems unlikely that Australia ever signed an ironclad commitment to the Obama administration to take the three Rwandans — in part because only two ended up going, and in part because Turnbull also stressed during the call that both the U.S. and Australia retained the right to reject any individual migrant on security grounds. Trump was eventually persuaded to abide by the agreement and backed down from his threat to scuttle it, although he insisted that the migrants from Australia’s offshore centers be subjected to “extreme vetting.”
A White House spokesman referred questions about Trump’s understanding of the deal to the State Department, which did not respond to a request for comment.
* * *
With Australians heading to the polls for a general election Saturday and the two major parties neck and neck, it’s not clear how the revelation that Australia took in the Rwandans on Morrison’s watch could affect his chances of reelection.
Turnbull, who spearheaded the deal with the U.S., was forced out of the premiership last August by a challenge from within his own Liberal Party and replaced as prime minister by Morrison, a former immigration and border protection minister known for his hard-line approach.
Several Australians were at the Uganda gorilla park on that fateful day in 1999 and were caught up in the attack, although none were killed. They include Payton Roocke, then a 23-year-old student on an all-expense-paid trip he’d won. He ran from the scene in his underwear and wound up in a rock crevasse.
Told that two of the Rwandan suspects were relocated to Australia, Roocke immediately suspected a connection to Australia’s long struggle with its policy of holding refugees offshore. “It sounds like a political thing … It sounds like a swap,” Roocke said.
Ross, the American tour leader caught up in the tragedy two decades ago, was taken aback by the Australian move. “That is strange — wow,” he said, before adding: “There must be a larger picture … These guys have ended up being bargaining chips, or pawns, in something bigger.”
Several relatives of those killed, called for this story, also reacted with shock and outrage to the relocation. “You’re joking,” said Jean Strathern of New Zealand, whose 26-year-old old daughter Michelle was among those who died in the massacre. “You’re not kidding me, are you? We are absolutely blown away, absolutely. Wow. It makes shivers run down your spine. They’re only two, three hours away on a plane … We’re a bit too close for comfort.”
Not all the foreigners at the park that violent day two decades ago share the outrage that the two men were settled in Australia. From the beginning of the prosecution, at least one American who was on hand during the attack had doubts that — out of the 150 fighters who attacked the park — the FBI managed to find the three who specifically killed the Americans.
“I was deeply suspicious that they had actually confessed
legitimately,” said Elizabeth Garland, then a 29-year-old doctoral
student living at the park campground and studying the impact of tourism
on the community, and who survived by hiding out in her tent.
Many in the Obama administration came to share those doubts about whether the men played any role in the murders, another former official said, fueling the drive to find the men a home outside Rwanda.
Garland called her feelings about the three “complicated,” but said she’s relieved they won’t be returned to Rwanda. To her, it seemed unjust to pluck three individuals out of the decadeslong wave of killing and reprisal in that part of Africa and subject them to a death penalty prosecution in the U.S.
“I don’t have that kind of understanding of good and evil in that region,” she said. “It’s not simply, ‘These guys are good guys and these guys are bad guys.’ There are layers and layers.”
Source: https://www.politico.eu/article/thats-just-insane-australias-secret-deal-to-take-in-rwandan-guerillas/
The three had been rounded up following a bloody 1999 attack that made headlines across three continents, when two Americans and six other Western tourists on a gorilla-watching visit to the Ugandan rainforest were killed with machetes and axes. The crime was so horrific that U.S. prosecutors charged the men under terrorism statutes, extracted them from Rwanda and then took the rare step of demanding the federal death penalty.
But in 2006, the prosecution went off the rails: A judge in Washington ruled the men’s confessions were obtained through torture in Rwandan detention centers, and the case was dropped. The men fell into immigration purgatory, fighting their return to Rwanda out of fear they’d be mistreated by the government there, but lacking the right to stay in the U.S.
The three became examples of a thorny issue that arises when the U.S. takes custody of terrorism suspects abroad. Harsh treatment they received overseas, or claimed to receive, can derail the cases against them — but once they’re on American soil, U.S. law gives the government no clear Plan B. Much like the terrorism suspects being held at Guantanamo, they can languish in limbo for years without being convicted of any crime, becoming a frustration for authorities and a human-rights black eye for the U.S.
But in the case of two of the Rwandans, POLITICO has learned that the U.S. government solved the problem by relocating the men — thanks to an undisclosed deal with one of its closest allies. Last November, without any public announcement, two of them packed up their things at an immigration detention center in rural Virginia and prepared for a trip that must have been almost impossible for them to fathom. After over 15 years in U.S. custody, Leonidas Bimenyimana and Gregoire Nyaminani were headed for new lives in Australia.
"We will take anyone that you want us to take" — Malcolm Turnbull to Donald TrumpAttorneys for the men did not respond to repeated questions about the transfer, while U.S. and Australian officials declined to comment. However, several people close to the Rwandans confirmed to POLITICO that the men were quietly moved to Australia, accepted at the request of U.S. officials as “humanitarian” migrants — essentially refugees. The third remains in a U.S. detention center.
The secret arrangement seems certain to spark controversy in Australia, where immigration and refugee policies have been a political tinderbox for nearly two decades — and which faces a national election Saturday. The transfer also sheds new light on the high-profile tensions between Donald Trump’s administration and the Australian government.
Under a murky pact struck between President Barack Obama’s administration and then-Australian Prime Minister Malcolm Turnbull in 2016, the U.S. agreed to take in as many as 1,250 migrants that Australia was holding in controversial offshore refugee centers, while Australia agreed to accept a smaller number of refugees in Central America as part of a U.S.-organized effort to relocate people fleeing drug-related violence. President Donald Trump tried to back out of the deal soon after taking office — prompting a heated phone conversation, one of Trump’s first foreign policy controversies in office, in which Trump said the deal made him look like “a dope,” and Turnbull pleaded with him not to abandon it.
While details of the so-called people swap remain classified, the leaders’ extraordinary exchange contained a little-noticed but cryptic remark by Turnbull, one that implied Australia was doing some significant but undisclosed favors for the Americans. “Basically, we are taking people from the previous administration that they were very keen on getting out of the United States,” Turnbull told Trump, according to a transcript of the call leaked to the Washington Post. “We will take more. We will take anyone that you want us to take.”
U.S.
President Donald Trump, left, speaks to then-Australian Prime Minister
Malcolm Turnbull in January 2017 | Drew Angerer/Getty Images
For survivors of the attack and families of the victims, emotions are still raw. “That’s just insane,” said Mark Ross, an American safari leader taken hostage and beaten with bamboo canes during the attack two decades ago, when informed of the relocation. “It’s almost like if you want to get out of a bad situation in a third-world country, murder someone from the country you want to go to, and then you’ll get there — which is just so ironic.”
* * *
The March 1, 1999 attack on the Bwindi Impenetrable National Park was shocking for its brutality. Vacationers, some on an upscale Abercrombie & Kent safari, came to the preserve to enjoy the idyllic scenery and to observe the rare subspecies of mountain gorilla featured in the film “Gorillas in the Mist.” Tourists expecting to be awakened by the sounds of the forest instead heard gunfire and saw a band of 100 to 150 fighters — armed with AK-47s as well as makeshift weapons such as spears — charging into the campground and rounding up petrified visitors.
“I was listening to the birds and watching the light slowly come up when I heard trees splitting and crashing down. It was not windy. There was no storm. So, it surprised me. Then, I heard shots,” recalled Ross, who has spent decades on African safaris as guide and pilot, and was in the park overnight accompanying a small tour. “They had just shot the senior warden and killed him. Eventually, they poured fuel on him and burned him … in front of some of us.”
Within minutes, all hell broke loose at the mountainside camp where Ross’s group and a couple dozen other Westerners were staying. “I heard yelling down below us. Rebels came up the hill shooting at us. A bullet went past my right shoulder. I heard it slap the branches and leaves and then I was taken prisoner,” Ross told POLITICO.
It was the beginning of a terrifying, 18-hour ordeal. Their captors were members of the Army for the Liberation of Rwanda, an offshoot of that country’s feared Interahamwe militia, who wanted the American and British governments to end their aid to the Tutsi-led government in Rwanda. The rebels seemed to have a plan to kill any American and British visitors they found, while sparing others. Some tourists scattered as soon as the attack began, while a French diplomat managed to negotiate the release of others, but about 17 were taken on a forced, shoeless jungle march toward the border with the Democratic Republic of the Congo.
One American woman managed to quit the march by faking an asthma attack. Others were left behind on the march because they couldn’t keep up. Eventually, Ross persuaded the fighters to abandon many of the hostages and let them go to deliver a message about the rebels’ goals. But on the return to the campground, the tourists came upon a horrific scene: Two women who turned back from the march were dead. Among them was one of the Americans, Susan Miller, 42, an executive at Intel in Oregon.
Bimenyimana, Nyaminani and a third man, Francois Karake, all confessed to their involvement in the murders of the Americans, U.S. prosecutors said.“I found two of the bodies. I found Susan,” Ross said. “They were lying on the path pretty much where we had left them.” Her husband, Rob Haubner, 48, was also killed.
Nearly all the victims were bludgeoned. The indictment later filed in the U.S. case also alleged that Miller was raped. Ross said the rebels wanted to keep shooting to a minimum to avoid alerting Ugandan government troops or police while the raid was underway. “This is the punishment for the Anglo-Saxons who sold us out,” a note the rebels left at one of the murder scenes said.
The FBI and Scotland Yard swung into action, traveling to the scene in Uganda to investigate the killings and hostage-taking of U.S. and British citizens, but the investigation proved challenging, as no eyewitnesses among the tourists had lived to attest to the murders. The FBI even offered a $5 million reward for information leading to suspects in the killings. While some individuals in neighboring Congo were reportedly seen with belongings looted from the Westerners, there was little or no physical evidence linking suspects to the murders.
Rwandan officials began canvassing the refugee camps and detention centers in Rwanda where Hutus, including former ALIR fighters, were being held. They looked for individuals who had mentioned the Bwindi attack or said they knew of others who did. Suspects and informants were moved to the Kami Military Camp, outside the Rwandan capital of Kigali, then brought to a police headquarters in the city for questioning by the Americans.
Bimenyimana, Nyaminani and a third man, Francois Karake, all confessed to their involvement in the murders of the Americans, U.S. prosecutors said. In mid-2002 and early 2003, the Justice Department brought sealed indictments against the men for the murders of the two Americans, Haubner and Miller.
After protracted negotiations with the government of Rwanda, the three defendants were flown out of the country. They made their first U.S. court appearance in Puerto Rico, and then in federal court in Washington, D.C. At a March 2003 press conference at Justice Department headquarters, the Bush administration portrayed the case as striking a blow for the U.S. in the Global War on Terror. "This indictment should serve as a warning," said Michael Chertoff, who was then chief of the Department of Justice’s Criminal Division. "Those who commit acts of terror against Americans will be hunted, captured and brought to justice."
The attack in Bwindi Impenetrable National Park shocked the world | Simon Maina/AFP via Getty Images
The men’s defense attorneys, however, told a different story. They said their clients’ alleged confessions were the product of torture by Rwandan officials, including the commander of the Kami camp, Capt. Alex Kbingo.
U.S. District Court Judge Ellen Huvelle held an extraordinary pretrial hearing that lasted 22 days over five weeks in May and June of 2006, featuring testimony from the defendants and Kbingo. The three defendants offered details: Nyaminani said he faced a form of torture known as “kwasa kwasa” in which a rope was used to tie one of his wrists over his shoulder to another behind his back. Bimenyimana claimed he was shackled and beaten with a sock containing a brick.
Prosecutors insisted that their stories were fabricated and self-serving. They said American officials had already interrogated each of the suspects in Rwanda and heard only a single claim of abuse: Nyaminani claimed that on one occasion where he failed to confess, Kibingo hit him four or five times on the lower back with a flip-flop. Even that seemingly minor incident was false, prosecutors insisted.
In August 2006, Huvelle, an appointee of President Bill Clinton, issued a painstaking and devastating 150-page opinion that torpedoed the government’s case. She said scars and other damage to the bodies of the three defendants amounted to “telltale signs of abuse.” Defendants testified they were kept in dark pits known as “go-downs.”
“Completely nonsensical … totally implausible,” the judge wrote about the testimony of the government’s key witness, Kbingo.
“Turnbull was desperate. People were dying. There was mounting criticism among civil society, NGOs and academics … It looked really bad for the Australian government" — Jay Song, foreign policy analystBy contrast, Huvelle found the defendants’ accounts “highly believable.”
The situation had strong parallels to military tribunals at Guantanamo. Perhaps the suspects were guilty of this crime; perhaps not. As members of ALIR, they may well have been involved in brutality, even atrocities. But the torture Huvelle concluded they suffered in custody so tainted the case against them that their responsibility for the gruesome murders in the Bwindi forest would likely never be established.
Initially, prosecutors fought the ruling, appealing it to the D.C. Circuit and saying they remained convinced of the men’s guilt. “These were some bad, bad dudes,” said one former U.S. official involved in the case. Investigators said the defendants provided details about the victims that could only have been known to those at the scenes of the killings, but defense attorneys said those details might have been fed to the defendants by Rwandan interrogators.
Without the confessions, however, prosecutors stood little chance of proving their case. They soon dropped the appeal and moved to dismiss the case entirely, while leaving open the theoretical possibility of refiling it in the future.
By February 2007, the criminal case was over. But the defendants were not free men. Had they been American citizens, they would have walked out of Huvelle’s courtroom and onto the streets. But two of the men would remain behind bars for another 11 years — and the third even longer.
* * *
Before the criminal case was even complete, defense attorneys served notice that their clients wanted asylum in the U.S. — a kind of nightmare scenario that critics of U.S. terrorism prosecutions have long warned about.
The three said that as Hutus, they feared they’d face persecution if returned to Rwanda, whose government was now led by rival Tutsis. The men also feared being brought up on charges related to the murders, then subjected to a sham trial or further torture. The dispute crystallized into asylum cases in which the U.S. government fought to return the men to Rwanda and the men sought to stay in the U.S., or least not be sent back to the country of their birth. The court battle wound its way to the 4th Circuit in Virginia, teeing up an unresolved issue under U.S. law: whether Executive Branch officials have a free hand to credit another country’s assurances of humane treatment, which Rwanda was offering, or whether judges are entitled to examine the plausibility of such promises.
In March 2015, an array of human rights groups weighed in on behalf of the three Rwandans, warning about the dangers of allowing U.S. officials unfettered discretion to deport foreigners in similar circumstances. The onslaught of critical attention — much of it from organizations generally friendly to the Obama administration — seems to have prompted a scramble to reconsider the government’s stance in the case and to look for a way out. All sides asked the court to put off oral arguments and allow for talks about a settlement that would involve sending the men to a third country.
From the U.S. government’s perspective, there were strong reasons to explore such a deal — not least the prospect that an unfavorable ruling at the circuit or Supreme Court level could limit officials’ options in future cases. But finding a country to take the men proved daunting, former officials and people close to the three told POLITICO. Again, there were echoes of Guantanamo. Defense Secretary Donald Rumsfeld famously branded the war-on-terror prisoners sent there as “the worst of the worst.” When U.S. diplomats later came calling on foreign governments to take the men, Rumsfeld’s words proved a major obstacle to finding willing nations.
Donald Rumsfeld, the U.S. secretary of defense under George W. Bush | Bryan Bedder/Getty Images for Concordia Summit
For more than three years, the court challenge to the planned deportation was deferred. Monthly reports filed with the court said negotiations were underway with an unidentified third country to take the men without disclosing the country. Finally, on November 8 of last year, there was a dramatic change: Bimenyimana and Nyaminani formally dropped their court cases, agreeing to a deal with the government under which they would never seek “re-entry” to the U.S.
But where were they going? On that, the court papers were silent. Officials at the Farmville, Virginia immigration detention center where the men had spent more than a decade said two of the men, Bimenyimana and Nyaminani, were “released,” but offered no other details. Officials at Immigration and Customs Enforcement referred questions to a Justice Department spokesperson, who declined to comment.
Multiple sources confirmed to POLITICO that two of the Rwandans were taken in by Australia | Matt King/Getty Images
In response to POLITICO’s request for an interview about the transfers, the Australian Embassy in Washington referred a reporter’s questions to the country’s Home Affairs Department, which declined to discuss the decisions involved. “The Department does not comment on individual cases,” a spokesperson said.
However, an embassy official sent an email statement responding in general terms about the country’s process for granting “humanitarian” visas in cases involving “persecution or discrimination that amounts to a gross violation of … human rights.” Pointing out that Australia plans to accept nearly 19,000 foreigners on humanitarian grounds this fiscal year, the official highlighted an official guide saying the process involves assessing the “character” of potential admittees and includes “checks related to national security, criminality, war crimes and crimes against humanity.” It also says that Australian officials work “closely with … international partners in conducting checks.”
* * *
For the United States, the deal solved two-thirds of the problem. The remaining Rwandan man, Francois Karake, is now being held in an Immigration and Customs Enforcement detention center about 20 miles west of downtown Miami. The facility, at the end of a road on the fringes of the Everglades and behind a military-style security checkpoint, holds hundreds of detained immigrants, including some of the most violent and emotionally troubled. Karake will turn 55 in June.
In phone interviews with POLITICO, Karake said that he, too, was considered for asylum in Australia. He recalled in broken English that, around last September, a woman from the Australian Embassy visited and told him he was being offered residence in Australia on “humanitarian” grounds.
“She said the Australian government will allow me to resettle in Australia,” Karake said. “She asked me questions for more than two hours — whether I would be happy to be an Australian. I said, ‘Yes.’” Australian officials declined to discuss the visit. U.S. Homeland Security officials also declined to comment about Karake’s status, and refused POLITICO’s request for an in-person interview with him.
Karake said the diplomat even discussed what benefits he’d be eligible for. “She said the Australian government will do everything possible to protect me and give me the help — for a full year,” he added. But, after the meeting a half a year ago, Karake heard nothing. Karake’s co-defendants boarded planes bound for that country. But Karake never got the call or even a firm no, he said.
POLITICO photo-illustration
Karake was charged in a Virginia court with malicious wounding. The case was continued repeatedly before being dropped by a local prosecutor last March, shortly after Karake’s local defense attorney died suddenly at home. Karake was moved from Virginia to Florida a short time later.
U.S. officials working on resolving the Bwindi cases were aware of what they called the “pencil-stabbing” incident with Karake. The Australian diplomat’s visit to him last fall suggests the country was willing to consider taking him despite the episode. However, Australian officials would also have been aware that any indication of violence on the part of the Rwandans — beyond the original murder charges — would heighten the political risk of agreeing to take the men from the U.S.
Karake, now entering his 17th year in U.S. detention, closed a recent letter to POLITICO with a plea: “I am tiered [sic] and only want to be released as soon as possible.”
* * *
In Australia, the arrival of the Rwandans is not public knowledge, in keeping with the secrecy surrounding many of the U.S.-Australian interactions over refugee issues.
The decision to accept the two men poses obvious risks for the Australian leaders involved at various stages of the process, heightened by the extreme political pressure that has surrounded the immigration issue in that country for nearly two decades. At the time the U.S. began actively seeking a destination for the Rwandans, in 2015 and 2016, Australia was courting U.S. help to resolve a refugee-related crisis that had become a long-standing stain on its own international reputation: the country’s policy of sending boat-borne migrants to offshore island camps in Papua New Guinea and Nauru.
The air of desperation at the grim outposts was so thick that at least two prisoners set themselves on fire, with one dying, and about 50 more making other suicide attempts. The hard-line policy of keeping seaborne migrants in camps was driven by fear that allowing migrants easy entry to Australia by sea would unleash a massive wave of refugee boats. Scenes at the Australian-funded offshore centers fanned international outrage: More than 120 children were housed at the camps, with some as young as 8 or 10 eventually attempting “self-harm.” “Nauru refugees: the island where children have given up on life,” the BBC titled one story on the crisis last year.
That was the backdrop for Australia’s readiness to cut refugee deals with the United States.
“Turnbull was desperate,” University of Melbourne foreign policy analyst Jay Song said. “People were dying. There was mounting criticism among civil society, NGOs and academics … It looked really bad for the Australian government.”
“This is a stupid deal. This deal will make me look terrible. This shows me to be a dope" — Donald Trump to Malcolm TurnbullPresident Barack Obama was open to helping Australia by taking many of the offshore migrants and resettling them in the U.S., but it was less clear what the Aussies could do in return. In September 2016, Turnbull made an unexpected, public pledge to take part in a U.S.-led effort to resettle migrants fleeing drug cartel-related violence in Central America who might otherwise have ended up as asylum seekers at the U.S. border. A former U.S. official said Obama administration officials also wanted Australia to do more — to make a series of gestures on refugee-related issues, not simply a one-off promise to accept some Central Americans.
“The Australians felt like they were making a pretty big ask of us … Ultimately, we were concerned about on some level being seen as validating the Australian policy, so in that context, we wanted them to do stuff,” the former official said. “We certainly encouraged them to do a lot of different things, [but] it was never a quid pro quo.”
During those talks, the ex-official said, the issue of the Rwandans was raised with the Australians. “This issue would be raised along with other issues,” said the ex-official, who asked not to be named and declined to elaborate on the Australians’ response. “This was absolutely brought up in lots of different conversations.”
Shortly after the U.S. election in 2016, Australia announced that the U.S. agreed to take in as many as 1,250 of the offshore migrants. The deal was quickly billed by the media as a “people swap,” but officials on both sides denied any explicit linkage between the U.S. and Australian actions. The terms of the refugee transfers are contained in two separate, parallel documents that remain classified. Former and current officials familiar with the negotiations refused to say whether the agreements mention the Rwandans.
Turnbull’s announcement of the deal five days after Trump’s surprise victory was long on celebration of the U.S.’s commitment to take in the refugees from Australia’s offshore camps and short on detail about what Australia had agreed to do in return. But the deal was soon on the rocks, thanks to Trump, who’d campaigned on reducing illegal immigration and the U.S.’s own intake of refugees.
The controversial refugee Camp Four on the Pacific island of Nauru | Mile Leyral/AFP via Getty Images
Due to the unusual secrecy surrounding the deal, it’s unclear whether Trump knew something former U.S. officials have emphasized to POLITICO: that Australia’s pledges went beyond taking in the Central American migrants. It remains unclear precisely whom Turnbull was referring to when he sought to sell Trump on the pact by mentioning Australia taking individuals that the Obama administration was “very keen on getting out of the United States.”
Asked whether the transfer of the Rwandans was explicitly part of the deal, one source familiar with the situation pointed POLITICO to that portion of Turnbull’s comments and said, “The prime minister understood the deal completely. President Trump did not.”
It seems unlikely that Australia ever signed an ironclad commitment to the Obama administration to take the three Rwandans — in part because only two ended up going, and in part because Turnbull also stressed during the call that both the U.S. and Australia retained the right to reject any individual migrant on security grounds. Trump was eventually persuaded to abide by the agreement and backed down from his threat to scuttle it, although he insisted that the migrants from Australia’s offshore centers be subjected to “extreme vetting.”
A White House spokesman referred questions about Trump’s understanding of the deal to the State Department, which did not respond to a request for comment.
* * *
With Australians heading to the polls for a general election Saturday and the two major parties neck and neck, it’s not clear how the revelation that Australia took in the Rwandans on Morrison’s watch could affect his chances of reelection.
Turnbull, who spearheaded the deal with the U.S., was forced out of the premiership last August by a challenge from within his own Liberal Party and replaced as prime minister by Morrison, a former immigration and border protection minister known for his hard-line approach.
Several Australians were at the Uganda gorilla park on that fateful day in 1999 and were caught up in the attack, although none were killed. They include Payton Roocke, then a 23-year-old student on an all-expense-paid trip he’d won. He ran from the scene in his underwear and wound up in a rock crevasse.
Told that two of the Rwandan suspects were relocated to Australia, Roocke immediately suspected a connection to Australia’s long struggle with its policy of holding refugees offshore. “It sounds like a political thing … It sounds like a swap,” Roocke said.
“I was deeply suspicious that they had actually confessed legitimately" — Elizabeth Garland, attack survivorNow 43, Roocke said he doesn’t know enough about the men who were resettled to say whether he’d object. “I don’t know these people … I don’t know why they were in that particular spot at that particular time,” he said. “I can’t imagine having 15 years in jail helped them. I think mentally it probably destroyed them. I can’t imagine being in limbo like that.”
Ross, the American tour leader caught up in the tragedy two decades ago, was taken aback by the Australian move. “That is strange — wow,” he said, before adding: “There must be a larger picture … These guys have ended up being bargaining chips, or pawns, in something bigger.”
Several relatives of those killed, called for this story, also reacted with shock and outrage to the relocation. “You’re joking,” said Jean Strathern of New Zealand, whose 26-year-old old daughter Michelle was among those who died in the massacre. “You’re not kidding me, are you? We are absolutely blown away, absolutely. Wow. It makes shivers run down your spine. They’re only two, three hours away on a plane … We’re a bit too close for comfort.”
Not all the foreigners at the park that violent day two decades ago share the outrage that the two men were settled in Australia. From the beginning of the prosecution, at least one American who was on hand during the attack had doubts that — out of the 150 fighters who attacked the park — the FBI managed to find the three who specifically killed the Americans.
The Obama administration claimed to doubt the guilt of the Rwandans in U.S. custody | Saul Loeb/AFP via Getty Images
Many in the Obama administration came to share those doubts about whether the men played any role in the murders, another former official said, fueling the drive to find the men a home outside Rwanda.
Garland called her feelings about the three “complicated,” but said she’s relieved they won’t be returned to Rwanda. To her, it seemed unjust to pluck three individuals out of the decadeslong wave of killing and reprisal in that part of Africa and subject them to a death penalty prosecution in the U.S.
“I don’t have that kind of understanding of good and evil in that region,” she said. “It’s not simply, ‘These guys are good guys and these guys are bad guys.’ There are layers and layers.”
Source: https://www.politico.eu/article/thats-just-insane-australias-secret-deal-to-take-in-rwandan-guerillas/
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