Une plainte d’un groupe d’éradicateurs rejetée par un juge américain

Une plainte d’un groupe d’éradicateurs rejetée par un juge américain

http://www.fis-info.net/ 08 August 2003

Après l’annonce de la reconnaissance par la justice néo-zélandaise à Ahmed Zaoui du statut de réfugié politique et la legitimité de ses activités politiques au sein du FIS, le FIS rend publique aujourd’hui une décision allant dans le même sens et prise cette fois par un juge fédéral américain.

En effet, ce juge, chargé de statuer sur la plainte civile deposée contre Anwar Haddam par des groupes éradicateurs, tels le RAFD, ainsi que d’autres individus qui n’ont pas voulu dévoiler leur identité, a rejeté, dans sa décision signée le 31 Mars 2003, cette plainte et a reconnu le bien fonde de la décision prise en Novembre 2000 par la plus haute court de l”immigration US (BIA) d’octroyer l’asile politique à Haddam.

Ainsi le Juge, pour répondre à ces éradicateurs plaignants qui voulaient s’opposer à l’annonce d’une décision finale sur la plainte, se réfère à la décision du BIA qui déclare que: “Le BIA a rejeté déjà toutes les accusations des plaignants contre Haddam”(extrait de la décision, page 18). Plus que cela, le juge americain nous révèle dans la même page 18 de sa décision que le procureur général d’Alger, a refusé de collaborer avec la cour américaine chargée d’étudier la plainte civile. Il faut à ce titre s’étonner de voir la « justice algérienne » qui a condamné à mort Anwar Haddam rater cette chance unique de donner des preuves contre un soit disant terroriste. On ne peut trouver d’autre explication à ce manquement que par le fait que cette “justice” des éradicateurs n’a au fait aucune évidence crédible à présenter devant une cour de justice qui se respecte.

Les cas des frères Anwar Haddam et Ahmed Zaoui sont une preuve undiscutable de la faillite de la stratégie terrorisante des groupes éradicateurs algériens, influençant encore malheureusement certaines sphères de l’état algérien.

Les plaignants contre Haddam ont définitivement renoncé à faire appel contre la décision du juge, comme l’a annoncé leur avocat le 3 juillet 2003.

Dans le même chapitre, on a pu aussi voir récemment Said Benhabyles, une des porte-paroles de ce courant éradicateur, déclarer sans broncher vouloir « faire pression sur les autorités néo-zélandaises » pour qu’elles reviennent sur leur décision d’accorder l’asile politique à Ahmed Zaoui. Est-ce que vouloir « faire pression » signifierait le même genre de « pressions » qu’a connues la France en 1996 et 1997 avec les attentats à la bombe? En bonne éradicatrice, Benhabyles a été trahie par ses propres déclarations: « faire pression » sur une cour de justice dans un pays qui se respecte comme la Nouvelle Zélande est tout simplement inadmissible et certainement répréhensible par la loi.

Bien que nombre des plaignants contre Haddam ont préféré rester anonymes nous avons pu établir qu’il s’agissait entre autres de : de Leyla Aslaoui, Saida Benhabyles, Zazi Sadou et Omar Belhouchet. Des noms connus pour s’être fait des chantres de l’éradication et qui se rendent compte maintenant que leur discours sordide ne tient plus. Leur cause misérable a été mise à nu par le FIS qui les a définitivement battus sur le plan des idées et de la communication.

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A US federal judge dismisses algerian eradicationist group’s action against Haddam

|08 August 2003 à 10:47:05 CEST |

A civil action brought by a number of Algerian citizens, and the pseudo “non-governmental » organization of Algerian women called the Rassemblement Algerien de Femmes Democrates (RAFD), before the United States District Court, for the District of Columbia, has been dismissed by a federal judge ruling.
This ruling is made public a week after a New Zealand court cleared Ahmed Zaoui from similar charges and graned him political asylum.

The action was brought by RAFD and some individuals who did not disclose their identities, under the Alien Tort Claims Act (ATCA), 28 U.S.C. § 1350, against the Islamic Salvation Front (FIS) and against Anwar Haddam, in 1996 .

RAFD and some of the plaintiffs are know as eradicationist groups in Algeria for their quest to physically eliminate FIS leaders and militants.

The plaintiffs alleged that Haddam assisted and encouraged armed Islamic groups in committing crimes against humanity, war crimes, and other violations of international law and domestic law. Haddam denied any involvement in facilitating or encouraging the alleged acts.

After the highest Immigration Court (Board of Immigration Appeal – BIA) granted him political asylum, in November 2000, and after his release from prison a month later, Anwar Haddam requested from the US federal Judge in charge of the case to put an end to this unfounded allegations and to make a final ruling on the case. His request was Alhamdulillah granted on March 30th, 2003, where the Federal Judge in charge of the case found no credible evidence to the charges alleged against Haddam and hence dismissed the civil action. The plaintiffs finally decided not to appeal against the decision on July 3, 2003.

Below are excerpts from the federal judge ruling.

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Background
The Federal Judge presented first a background of the civil action. He stated the following:
“In 1992, the military-backed government of Algeria aborted the first parliamentary elections ever held in that country when it appeared that the FIS, a fundamentalist Islamic group opposed to the military and secular regime, was about to win a majority of the seats. The FIS was dissolved and banned, and several of its leaders were arrested or killed. A bloody and brutal conflict between armed Islamic groups and the military ensued, with many atrocities committed against civilians.

The plaintiffs lay blame for that violence upon the FIS and other Islamic groups, alleging that the FIS espoused an extremist interpretation of Islamic law and encouraged and facilitated armed Islamic groups to kill, injure, and threaten civilians, including political activists and journalists who were critical of Islamic fundamentalism.

In this case, they also lay blame upon — and seek to affix liability to Anwar Haddam, an Algerian citizen and FIS member who was elected to the parliament before the final round of elections was canceled. They allege that Haddam facilitated the FIS in its violent activities and then publicly condoned the violence as the FIS’s spokesperson in the United States, by issuing newsletters, communiques, declarations, and other statements from an office that he set up in Washington, D.C. Haddam denies the plaintiffs’ allegations.

Plaintiffs brought this action in 1996. Several years of litigation were consumed by discovery disputes related to confidentiality issues. Haddam asserted that he could not adequately prepare his defense unless he could obtain basic information about the allegations against him, such as the identities of the anonymous plaintiffs. Both sides resisted making certain disclosures, asserting safety concerns. The individual anonymous « Jane Doe » or « John Doe » plaintiffs, some of whom currently reside in Algeria, said that they feared reprisal from Islamic groups for bringing this action. Haddam said that he feared for himself and his family because of his status as a defendant in this case.

Discovery disputes were twice referred to a magistrate judge, who issued a final report and recommendation on May 25, 2000.”

“Based on that report and recommendation, I quashed a subpoena duces tecum plaintiffs had served upon the INS seeking information related to Haddam’s asylum application [i.e the Judge rejected a request made by the plaintiffs to have access to my Immigration case file which is confidential], and I granted Haddam’s motion to compel answers to interrogatories, amending the confidentiality order to require plaintiffs to reveal their identities and to provide specific information about the alleged incidents. Plaintiffs’ interlocutory appeal of those rulings was dismissed [i.e. Plaintiffs tried without success to challenge those 2 crucial Judge decisions:

1- to keep for security reason Haddam’s Immigration case file confidential -The judge recognized that the plaintiffs had no need to that file to make there civil case-

2- to grant Haddam the right to ask the plaintiffs some specific questions regarding there allegations in order for him to be able exercise his right to a proper defense] .

Some of the plaintiffs then voluntarily dismissed their claims (without prejudice).

The remaining plaintiffs are:

1. Jane and John Doe I: their son was killed in June 1994 for his opposition to Islamic fundamentalism. Algerian police suspect that the Armed Islamic Group (GIA) was responsible. These plaintiffs fled the country after their home was ransacked.

2. Jane Doe II: witnessed from the airport and watched on television the hijacking of an airplane by the GIA on December 24, 1994. Her daughter and sister were passengers on the plane.

3. Jane Doe IX: her husband, a journalist who worked for a secular newspaper critical of the Islamic insurgency, was killed in 1995. The Islamic Salvation Army (AIS) allegedly placed her husband on its hit list and advocated his death months before his murder.

4. Omar Belhouchet: he has allegedly received threats from the FIS. Plaintiff is an editor of El Watan, a newspaper that opposes the Islamist insurgency. He alleges that Haddam incited a violent campaign against journalists.

5. Zazi Sadou (Jane Doe III): spokesperson for RAFD and leading Algerian feminist activist. She alleges that she has been targeted by armed Islamic groups. She blames Haddam for encouraging violence against « non-innocents » who opposed the FIS.

6. RAFD: suing on behalf of members who have been targeted by armed Islamic groups.”

The Judge stated also in section:

III. Standing

“Haddam challenges the RAFD’s standing to sue under the Alien Tort Claims Act. His challenge must be sustained.

…Whether the RAFD has standing to sue depends on whether the claims against Haddam require individualized proof from each RAFD member.

The fact that the RAFD seeks money damages is dispositive: it does not have associational standing, because individualized proof would be required from each member to determine the correct amount of damages if Haddam were found liable.”

And in section:

IV. Subject matter jurisdiction

“The ATCA confers jurisdiction over actions for torts committed in violation of the law of nations or a treaty of the United States. 28 U.S.C. § 1350. The law of this Circuit is unclear, however, as to whether the ATCA creates a cause of action and whether the ATCA confers subject matter jurisdiction over claims against non-state actors.

Even if the ATCA creates a cause of action and imposes liability upon non-state actors for certain acts, the only claim over which this Court has subject matter jurisdiction under the ATCA is that of Jane Doe II.

Plaintiffs also identified the Torture Victim Protect Act, 28 U.S.C. § 1350, note, as a basis for jurisdiction, but that Act is clearly inapplicable here, because, in contrast to the ATCA, the TVPA « contains explicit language requiring state action. » Plaintiffs have offered no facts showing that Haddam was a state actor or that the FIS was a de facto state.

Plaintiffs’submission, that any violence or threat against a civilian or « non-combatant » during an armed conflict should be considered a war crime or crime against humanity, is unsupported by authority and is rejected.

To justify his decision to put to an end this six years long harassing civil action, the Judge stated as a conclusion in section:

V. Plaintiffs’ evidence

“Even assuming arguendo that jurisdiction could be exercised over all of the plaintiffs’ claims, the evidence plaintiffs have offered to link Haddam to the alleged acts committed by armed Islamic groups is insufficient to avoid summary judgment. There is nothing in this record on which a jury could reasonably find for plaintiffs, . . . regardless of whether international criminal law standards or federal common law standards are applied to the plaintiffs’ claims of accomplice liability and conspiracy.

The asserted links between Haddam and the acts committed by armed Islamic groups against civilians are much too tenuous to support of finding of liability.

All ten of plaintiffs’ declarations describe the effects on individuals of the horrific violence in Algeria and attribute blame to « Islamic fundamentalists, » including the FIS, but none offers more than conclusory statements [ i.e. accusative statements without any proof ] about Haddam’s alleged role.

“The fact (if it is a fact) that Haddam served in a leadership capacity of the FIS when it was affiliated with violent groups, such as the GIA, from 1994 to 1995, does not link Haddam to any specific acts in the absence of evidence that he was a member of or had official contact with the GIA or the AIS. Haddam acknowledges that the GIA was part of the mujahidin between May 1994 and November 1995, and that the FIS supported the GIA’s armed struggle against the military regime in order to restore elections. He states, however, that, once the GIA began killing civilians after November 1995, he disassociated himself from the GIA and other violent Islamic groups, and plaintiffs offer no facts to refute that statement.. . . “

“A communique alleged to have been written by the FIS and the AIS soliciting money from civilians and threatening, « If you told the police, we will know and you would have sentenced yourself with death because you have dealt with the ‘tempters’,. . . is of no probative value in the absence of any allegation that Haddam participated in its issuance or even knew about it.. . . ”

“Public statements by Haddam allegedly condoning violence against journalists and others who opposed an Islamic state do not help prove that he assisted or directed armed Islamic groups in carrying out the particular acts that affected the plaintiffs. The few specific examples that plaintiffs provide do tend to establish that Haddam rationalized violence or refused to believe that civilians were being targeted, but the statements themselves cannot be deemed tortuous.. . . “

“The only statement attributed to Haddam that does suggest his support for violence committed against civilians was allegedly made on May 6, 1994 during a newspaper interview:

“We have suggested to our brothers the Mujahidin to target those secular extremists who refused the choice of the Algerian people. It happens that among those there are university professors, journalists, politicians, military . . . [t]hat is why the order has been given to people to organize locally and target all of those who seized the state apparatus.” « Expert I » Decl. at 18. This statement demonstrates Haddam’s justification of violence against civilians supporting the military regime. It does not support a conclusion that Haddam incited or facilitated the threats, injuries, or murders that are the focus of the plaintiffs’ claims.

This single statement does not create a material factual dispute, either alone or in conjunction with the fact that Haddam and the FIS supported armed struggle against the government.”

Plaintiffs made objection to the entry of summary judgment. As a response to that objection, the Federal Judge stated in this same section the following:

“…Professor Copelon [i.e. Plaintiffs’ lead attorney] never really states why plaintiffs « cannot present facts essential to justify [plaintiffs’] opposition . . .. »

The parties have indeed mired themselves in the discovery disputes described above, but there has been no impediment to the discovery of non-parties during the six-year history of this case. During that period, the plaintiffs could have pursued much, if not most, of the discovery that Professor Copelon now wants to take, but they have not done so. In any case, most of Professor Copelon’s proposals to take discovery would meet obvious governmental barriers, erected for reasons of bureaucracy, or secrecy, or both, and are on their face unlikely to lead to admissible evidence.

It would be unreasonable to require Haddam, who has private counsel, to participate in and endure litigation with the State Department, Defense Department, the CIA, the FBI, and the National Security Council over the depositions Professor Copelon now wants to take and the subpoenas duces tecum she now wants to serve. The letter rogatory that Professor Copelon wants to send to the Government of Algeria are unlikely to uncover information of any kind, admissible or not, in view of the fact that an earlier letter rogatory was refused and a meeting with representatives of the chief prosecutor in Algiers was unsuccessful. [ note: why did the Algiers chief prosecutor have missed such opportunity to provide, if any, evidences against Anwar Haddam]

“Professor Copelon persists in her quest for information from and about Haddam’s asylum proceedings, but here she is merely fishing, and fishing in waters unlikely to be productive, in view of the fact that the BIA rejected the plaintiffs’ allegations against Haddam. [ Note: even though, as noted by the judge, the case of the bombing of the police station- center of torture of the Rue Amirouche was withdrew by the plaintiffs, it worth to mention that the BIA did review the case and found out that [BIA Decision, Nov 30, 2000, page 23] :

[Anwar Haddam] admitted that after hearing about the bombing he was told that it was aimed at the police station, and that it had accidentally exploded before reaching destination. However he denied that he or the FIS was directly responsible, only noting that “ the freedom fighters have to take responsibility” [for the innocent civilians who were killed]. ..

we find these words to be no more than an acknowledgment that in fighting against the junta, some innocent civilians were, unfortunately, killed. Moreover, we note that the only official pronouncement made by the applicant [Anwar Haddam] on behalf of the FIS regarding this bombing was a communiqué which spoke out against the killing of innocent civilians. We find no discrepancy in the record based on the applicant’s [Anwar Haddam]statements made about this bombing during the radio interview[with National Public Radio, USA] ]

The Judge continues by stating: “And her desire [the lead lawyer]to issue subpoenas to financial institutions, telephone companies, and the Justice Department’s Office of International Litigation, in order to pursue her « information and belief » that Haddam is or has been involved in arms trafficking, is fishing in a different ocean. The only discovery Professor Copelon proposes that seems plausible is the deposition of Haddam himself, but, in the absence of even a scintilla of evidence directly linking Haddam to the airplane hijacking on December 24, 1994 – the single claim of the remaining plaintiffs over which this Court has jurisdiction — such a deposition would be harassment.

Conclusion

For the reasons set forth above, defendant’s motion for summary judgment will be granted.”

The plaintiffs’ lawyer did appeal this decision. However all of the plaintiffs, after consideration of the matter, have decided against proceeding with this appeal and hence withdrew it on July 2nd, 2003. for the reasons set forth below.