Exclusive: court documents show US attorney wanted to be able to prosecute pair again for ‘horrendous’ crime, before they came to Australia in refugee swap deal

Two Rwandans accepted into Australia were accused of crimes so “grave” and “horrendous” that the United States fought for the right to prosecute them a second time, court documents show.

The Australian government sparked controversy last month for accepting two Rwandan militants previously accused of murdering tourists in targeted 1999 attacks in the Bwindi Impenetrable national park in Uganda.

Australia had agreed to take the pair – Gregoire Nyaminani and Leonidas Bimenyimana – in a secret asylum swap deal with the US, a decision seemingly at odds with its otherwise hardline approach in using character grounds to deport non-citizens and block visa requests.

The men were effectively in purgatory because the prosecution against them collapsed in 2007, but they couldn’t be returned to Rwanda, and were not granted asylum in the US.

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But court documents show the US was keen to keep open the prospect of launching fresh criminal proceedings against the men after the case collapsed in 2007.

US attorney Jeffrey A Taylor, argued the government should have the right to prosecute the pair again if new evidence came to light.

“The Court should dismiss this indictment without prejudice, in order to preserve the ability of the United States to prosecute the defendants for their roles in this grave offense,” Taylor argued, according to court documents. “As the Court is well aware, this horrendous crime was committed by members of ALIR – a terrorist organization.”

“Numerous members of ALIR participated in the offense, not solely the defendants. Therefore, while the United States is unable to proceed to trial at this time, it may be able to do so in the future based on evidence apart from the defendants’ confessions.”

The district court agreed, leaving open a theoretical prospect that the two men now in Australia and a third defendant remaining in the US could be charged again for the crimes.

Defence lawyers for the three men had argued the government was simply seeking a “‘second bite’ at the apple”, hoping for the chance to further their investigations.

“Even if the defendants were U.S. citizens and thus not facing renewed extradition and removal from their homeland, the hope that somehow evidence will surface in the future to justify a renewed prosecution does not discharge the court’s duty to protect the defendants from fear of harassment and repeated prosecution,” the defence submitted, according to court documents.

When the case against them collapsed, the three men immediately applied for asylum in the US, fearing they would be mistreated or persecuted if returned to Rwanda. Immigration rulings show they were denied asylum, in part because they posed a risk to national security and were members of a terror group, the Army for the Liberation of Rwanda. But immigration courts also found they could not be returned to Rwanda because they were likely to be tortured again.

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Court documents and leaked diplomatic cables also reveal that Rwanda made repeated approaches to the US to secure the men’s return.

Senior Rwandan officials – including its prosecutor general and justice minister – assured the US in 2008 and 2011 that the men would receive fair trials and would not be tortured. The confessions previously obtained through torture would not be used against the men in a new trial, the Rwandan government said.

It is unclear whether the Rwandan government still seeks to prosecute the men for the Bwindi killings.

Their most recent known approach to the US was in July 2011. The then justice minister, Tharcisse Karugarama, wrote to the US ambassador assuring they would make the men available to US officials and third-party monitoring, among other things, if they were sent back.