Tuesday, May 01, 2018
Congress and two presidents hav[ing] said so
Ahead of pre-trial hearings resuming, on 30 April, in the case of five men accused of involvement in terrorist attacks in New York in September 2001, a lawyer for one defendant, Ammar Al-Baluchi, asked “a military judge to order the prison to permit the public release of art he makes in his cell” at Guantánamo. Lawyer Alka Pradhan and her team filed a pleading “accusing the Department of Defense of violating the captive’s rights by making it more difficult for him to draw and paint and by blocking him from giving his artwork to his attorneys”. Producing the artwork is therapeutic for Al-Baluchi who was severely tortured by the US in secret jails over a number of years before he was brought to Guantánamo. The ban on the release of his work was imposed in November 2017 when a watercolour he made was included as part of a New York City art exhibition of prisoners’ artworks.
Another defendant, Ramzi bin Al Shibh, spent at least two weeks this month being held in an isolation cell with no bed or running water, with only a prayer mat and a Qur’an and access for one hour a day to legal material “as punishment for protesting conditions in his Guantánamo confinement”. His lawyer reported that “He's in really, really bad shape” and that being placed in isolation was re-traumatising him. Since being placed in isolation on 12 April, he has been on hunger strike, accepting only water. He is since reported to have been returned to his normal cell, with the punishment having ended, but is still on hunger strike. Al Shibh told his legal team that he was “punished for shouting at his guards, at one point scratching the lens of his cell’s monitoring camera and for putting stones in his toilet to cause another captive's toilet to overflow”.
Two Libyan prisoners released to Senegal in April 2016 have been sent back to Libya on 4 April by the Senegalese authorities. Prior to their return, one of the men, Omar Khalifa Mohammed Abu Bakr, had told his lawyer that he fears for his life if returned there. The two men were granted humanitarian asylum by the West African country in 2016 but since early 2018 it has been threatening to deport them. Since their reported return to Libya, a country overrun by militias since the US-led war in 2011, both men have “disappeared”. The other man, Salem Abdul Salem Ghereby, who has a wife and children in Libya, had expressed his wish to return there.
According to the NGO Cage, Ghereby was being held at Mitiga airbase in Tripoli whereas Omar Khalifa was detained in Senegal following a failed attempt to deport him. There have been no official reports of their whereabouts or of who is holding either of the men.
It should be recalled that both men were released by the Obama administration which also started the bombing of Libya which has led to the current deterioration of the security situation in the country.
On 13 April, Saudi prisoner Ahmed al Darbi had his sentencing hearing after he pleaded guilty to war crimes in a plea bargain deal in February 2014. Al Darbi was tortured into confessing involvement in the bombing of ships in the Arabian Sea after 9/11. He was sentenced to 13 years in prison, which began to run as of the time of his trial and not since he was seized in 2002; he could thus be released in 2027. He has been due to be returned to his native Saudi Arabia since February to serve the rest of his sentence there. This was the first sentencing hearing at Guantánamo since 2011.
Lawyers for Abd al Hadi al Iraqi, who says his real name is Nashwan al Tamir, have protested a potential trial timetable for mid-2019, saying they have not had enough time to prepare and that the defence team is subject to change. He was one of the last prisoners to be brought to Guantánamo and is facing non-capital charges but faces the prospect of a life sentence.
Macedonia has issued a formal apology to Khaled El Masri, the German citizen of Lebanese origin in whose rendition it assisted in 2003. He was detained in the country while on holiday and was interrogated for more than 3 weeks. He was accused of being a member of Al Qaeda before being handed over the CIA who then took him to Afghanistan and tortured him before releasing him in rural Albania months later.
In 2012, the European Court of Human Rights ordered Macedonia to pay him compensation of €60,000 after the country was found to have breached his human rights. However, the country has never investigated the crimes and no one has been held to account.
On the other hand, both the US and Germany have remained silent. Current German president Frank-Walter Steinmeier refused to apologised when asked to during his election campaign last year; in 2005, he came under fire for suppressing information the German government had at the time on his case and acting too slowly on it. The US itself quickly realised it had the wrong man.
Furthermore, Germany has failed to provide him with adequate rehabilitation and medical support. Since his return to Germany, El Masri has been arrested and jailed several times for violent behaviour, which has been linked to his untreated torture trauma.
In a letter, the Scottish Lord Advocate James Wolffe has suggested that a police investigation into torture flights through Scotland may continue until the US hands over a full unredacted copy of the US Senate committee Torture Report, which has been requested by the Scottish authorities but has not been acquiesced.
On 20 April, a federal judge prevented attempts by the Trump administration to transfer a US citizen accused of fighting with ISIS in Syria to Saudi Arabia. The unidentified man has been held without charge since he surrendered to the US over 7 months ago. He will remain at a US military detention facility in Iraq for now. The man is represented by the American Civil Liberties Union (ACLU), which argued “that any transfer would violate the detainee's constitutional and legal rights because the government has not charged him or proved that it legally detained him in the first place”.
The LGC held its second monthly Shut Guantánamo! demos outside the US Embassy in Nine Elms in April. This demo was in solidarity with the Iraqi people 15 years after the war there started. Please join us on Thursday 3 May at 12-2pm for our next monthly demonstration. The address is 33 Nine Elms Ln, London SW11 7US, nearest underground: Vauxhall. More details available at: https://www.facebook.com/events/192571218047863/ All are welcome to join us.
Thursday, March 29, 2018
The UN Working Group on Arbitrary Detention has declared that the US’ detention of Pakistani national Ammar Al-Baluchi, one of five defendants accused of involvement in the September 2001 attacks in New York, is “arbitrary, breaches international human rights law and has no legal basis”. In a written statement by five independent experts, his detention was called “discriminatory” and the legal process he and his four co-defendants are subject to before the military commission system was slammed for not granting the defendants the same facilities to prepare their case as the prosecution, denying them a fair trial on the basis of nationality and religion. The experts stated that his detention “contravened at least 13 articles of the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights”. The Working Group further stated that “systematic imprisonment in violation of the rules of international law may constitute crimes against humanity”.
The reason that led three civilians lawyers to leave the USS Cole bombing case at Guantánamo in October last year, throwing the military commission system into further disarray, was disclosed in a 15-page prosecution file to the court obtained by the Miami Herald newspaper in early March, which stated that the lawyers discovered “a microphone in their special client meeting room and were denied the opportunity to either talk about or investigate it”. The court filing to the US Court of Military Commissions Review was signed by the chief prosecutor, with the prosecution claiming that the microphone had been placed there previously but was not in use. The case is aimed at getting a review panel to order the resumption of the case and was brought by the defendant Abd Al-Nashiri’s sole remaining defence lawyer at the end of last month. The case was adjourned in February when the judge asked for a higher court “to clarify his authority as a judge in the Guantánamo war court.” The resignation of the lawyers left Yemeni Abd Al-Nashiri without a capital defender in a case where he faces the death penalty for his alleged involvement in the death of 17 US soldiers in a suicide bomb attack in 2000 off the Gulf of Aden. However, lawyers and NGOs have questioned that if the issue was simply an error, then why has it been kept as a national security secret for months, and has prompted them to ask what else is being kept secret. The resigning lawyers were not allowed to reveal why they had resigned, and they claim that there is more to the issue than has been revealed.
Two of the defence lawyers have stated that several important details were missing from the account given in the court filing. They said that there was no sign that the microphone was no longer connected and contended that the government has never previously provided that explanation in the five months since they resigned. One of the lawyer, death penalty-specialist Richard Kammen stated, “This was the first we heard the claim, and that’s part of the reason we don’t believe it’s true”. He also stated that the defence team was already suspicious that its communication with its client was being monitored following a previous incident, which is also classified. At one stage, the judge dismissed the lawyers’ concerns about monitoring and snooping into their communications as “fake news”.
In the case involving five men accused of involvement in the 2001 attacks in New York, the judge in the case said that he would “order Secretary of Defense Jim Mattis to explain in writing why he suddenly fired the top official overseeing the war court”. The reasons for the 5 February dismissal of Harvey Rishikof, the Convening Authority for Military Commissions, and his legal advisor Gary Brown were not disclosed. The judge stated that “We simply need to know why they were terminated”. There is concern that Rishikof was fired for attempting to negotiate a deal for the five defendants.
The Pentagon is planning to demolish Camp X-Ray, the long emptied notorious camp from which images of prisoners kneeling and behind fences in orange jumpsuits emerged in the early days of Guantánamo. Controversy has arisen over this move with some claiming it should remain open as a testimony to this sinister chapter of US history. The Justice Department, however, claimed in a letter to Guantánamo lawyers that “the FBI has created an interactive, simulated three-dimensional, digital virtual tour of Camp X-Ray that shows all areas of the camp where detainees were held, interrogated, or otherwise present."
The prison opened on 11 January 2002 with the arrival of the first 20 prisoners and was declared closed in late April 2002, however since then several prisoners have since reported being abused there after that date. One prisoner, Saudi Mohammed Al-Qahtani, who could not be prosecuted because of the torture he was subjected to said “he was tortured at Camp X-Ray with sleep deprivation, growling dogs, sexual abuse, forced nudity, harsh shackling and beatings”.
Saudi prisoner Ahmed Al-Darbi who pleaded guilty to war crimes in a secret plea deal following years of torture, and more recently provided recorded evidence in two cases against other prisoners, was due to be returned to Saudi Arabia by 20 February under the terms of the plea deal, however he remains at Guantánamo to date. In a letter, he hit out at the Saudi government for delaying his release, claiming that it has never done anything to help him and did not even provide him with a lawyer. He stated, “And now my own government is an obstacle to my repatriation. What kind of country abandons its citizens in the custody of another government for 16 years? My country won’t take a step that was agreed on four years ago so that I can finally go home. It’s been my daily dream for four years to see my wife and children”. According to his lawyer, Al-Darbi submitted his transfer request shortly after he was sentenced in August 2017 and the terms for his repatriation had been negotiated after he pleaded guilty in 2014.
Following a visit to Washington by Saudi Crown Prince Mohammed Bin Salman, the Pentagon announced that the repatriation process was on track, yet he remains at Guantánamo.
In 2014, Al-Darbi, following years of physical, sexual and psychological torture at Guantánamo and elsewhere pleaded guilty to a small role in a 2002 attack against a French-flagged oil tanker of the coast of Yemen. He agreed to cooperate with the US authorities on the basis he would be repatriated after 4 years. In 2017, he was sentenced to 13 years in jail, the remainder of which he is due to serve in Saudi Arabia.
Lawyers for Yemeni prisoner Moath Al-Alwi were at a federal appeals court on 20 March to deal with the issue of the indefinite detention of prisoners at Guantánamo Bay, more than 15 years after the war in Afghanistan began. Al-Alwi previously posed the question to the courts under the Obama administration where the judge responded that the question of when the war ends, or has ended, is at the discretion of the president; in 2014, Obama had declared the end of hostilities in Afghanistan, although the warfare continued. With Trump’s stated plans to keep Guantánamo open and possibly expand it, the case has new importance.
The arguments in the case hinged on whether the conflict in Afghanistan now is still the same one Al-Alwi was captured in over 16 years ago and whether the US government can still hold him legally.
The arguments in the case can be read and listened to here: https://lawfareblog.com/summary-courtroom-al-alwi-v-trump-oral-argument
The Ghanaian Parliament has ratified the signing of a Memorandum of Understanding between the Ghanaian and US government on defence cooperation which will allow the US military to open a military base in the country and operate on a tax-free basis. The Ghanaian government claims the deal is beneficial for the country and has denied that it is in any way linked to the agreement made with the US to accept two former Guantánamo prisoners, although it is not unknown for the US to offer trade deals and funds to poorer countries that agree to host Guantánamo prisoners who have no safe country to return to. In January, the Ghanaian government granted the two Yemeni prisoners it accepted in 2016 refugee status.
In a case that will have serious repercussions for the prosecution of European states for the use of torture, and possibly their involvement in extraordinary rendition, in a review of the key 1978 case UK v Ireland, in which the European Court of Human Rights deemed detention practices, such as hooding, stress positions, sleep deprivation, etc. carried out by the British military against Irish republicans in Northern Ireland were inhuman and degrading treatment but not torture, the Court once again upheld this decision. It decided that new evidence presented by the Irish government was not tantamount to torture. These torture techniques have since been used by the US and British armies in Iraq, Afghanistan and elsewhere. They were later banned in the UK. The decision was a blow for survivors, many of whom continue to suffer as a result of the treatment they received when detained without trial by the British army in the 1960s and 1970s.
Confirmation of the nomination of Gina Haspel as head of the CIA has raised a lot of controversy, given her past involvement in running secret CIA prisons, in particular the first black site in Thailand, and thus she oversaw the use of torture at such sites. As much about the extraordinary rendition programme remains obscure, the extent of her involvement is unknown. An arrest warrant was put out for her by a German NGO due to her involvement in war crimes and crimes against humanity and she is thus unable to travel to the EU. Human rights NGOs have asked for her to be prosecuted instead and politicians in the US have asked for full disclosure of her role.
The LGC held its first monthly Shut Guantánamo! demos outside the new Nine Elms US Embassy in March. It was well attended in spite of the features of the new embassy that are intended to deter protest. Our second protest there will be in solidarity with the Iraqi people 15 years after the war started there with the US invasion, backed by its allies, including the UK. Please join us on Thursday 5 April at 12-2pm The address is 33 Nine Elms Ln, London SW11 7US, nearest underground: Vauxhall. More details available at: https://www.facebook.com/events/157022028258385/ All are welcome to join us.
Tuesday, February 27, 2018
The new US ambassador to Australia is US Pacific Commander Admiral Harry Harris, who has served 39 years in the US military. However, there have been controversies during this time, including at Guantánamo, where in March 2006, “he assumed command of the joint task force at Guantanamo Bay in Cuba. During his command, three prisoners – Mani Shaman Turki al-Habardi al-Utaybi, Salah Ali Abdullah Ahmed al-Salami and Yasser Talal al Zahrani – died in the custody of US forces. US Defence reported the deaths as suicides. Harris ordered a full investigation by the Naval Criminal Investigative Service, which published its report in a heavily redacted version in August 2008.”
Days after Donald Trump’s executive order to keep Guantánamo open, which would involve Defence Secretary James Mattis looking into a new policy on the detention of combatants and possible transfers to Guantánamo within 90 days, Mattis fired two top officials at Guantánamo Bay, citing a “loss of confidence”: Harvey Rishikof, Director of the Office of the Convening Authority for Military Commissions and Convening Authority for Military Commissions, and Gary Brown, his legal advisor. Temporary replacements have been assigned. A Pentagon spokesperson reported that the firings had no impact on ongoing pre-trial hearings.
Today, Secretary of Defense James N. Mattis rescinded the designations of Harvey Rishikof as the Director of the Office of the Convening Authority for Military Commissions and as the Convening Authority for Military Commissions. Additionally, William S. Castle, acting General Counsel, rescinded the designation of Gary Brown as the Legal Advisor to the Convening Authority.
Secretary Mattis appointed Jim Coyne as Acting Convening Authority. Coyne currently serves as the General Counsel at the Defense Logistics Agency. Mr. Castle appointed Mark Toole as Acting Legal Advisor to the Convening Authority for all military commissions except for the case of U.S. v. al-Nashiri, and appointed U.S. Air Force Colonel Matthew van Dalen as Acting Legal Advisor to the Convening Authority for the al-Nashiri commission. Toole previously served as the Deputy Legal Advisor to the Convening Authority and van Dalen was previously an assistant legal advisor to the Convening Authority.
These personnel actions do not impact ongoing OMC hearings and proceedings.
Tom Crosson, Pentagon spokesman
It shortly thereafter transpired that before he was unexpectedly fired, Rishikof had been exploring plea deals “to end the long-delayed prosecution of five suspects in the Sept. 11 attacks, a move that would foreclose the possibility of execution, according to several people familiar with the matter. No deal was imminent, the people said, but the talks were active and contemplated the defendants — including Khalid Shaikh Mohammed, the self-described architect of the attacks — pleading guilty and probably receiving life sentences. Most of the people spoke on the condition of anonymity to discuss sensitive deliberations.”
According to the New York Times, “Guilty pleas would offer a way out of a complex case that has been mired in years of pretrial hearings and is certain to face many more years of appeals if it ever gets to trial and results in convictions. Taxpayers have already spent hundreds of millions of dollars pursuing the case, and plea deals would bring earlier closure to victims’ families.
But striking such a deal would mean giving up on winning death sentences against defendants accused of aiding the murder of nearly 3,000 people, and could amount to surrender over the idea of using military commissions to prosecute terrorism cases.”
In addition, in 2017, Rishikof’s office had rejected possible charges against three prisoners in relation to a 2002 bombing in Bali, Indonesia.
No official reason has been given for the dismissal of these two senior officials.
As pre-trial hearings in the case of the five men alleged to be linked to the 2001 9/11 attacks resumed at the end of February, the judge in the case said he would order James Mattis to explain why he fired Rishikof and set a 19 March deadline for a response.
The government of Uruguay has agreed to extend the economic assistance given to six former Guantánamo prisoners who arrived in the country to be resettled as refugees in 2014. According to the government’s mediator with the former prisoners, Christian Mirza, they will receive a minimum wage payment of around $450 per month for another year, to January 2019, as well as rent and money for training, therapy and language learning.
The men have struggled to find work and adjust to life in Uruguay. However, this has not been assisted by the constant media scrutiny of their private lives and the stigma attached to being ex-prisoners, which is then not helped by the negative publicity surrounding them, all of which is speculative, particularly as none of the men were ever charged or tried by the US.
In addition, two prisoners sent to Ghana for two years in 2016 have now been recognised as refugees by the country and have been granted permission to remain there by the Ghanaian parliament. The two Yemeni nationals cannot return home due to the war and cannot be sent to the US.
The Pentagon has asked for $69 million to replace the top-secret camp 7 where the 9/11 case defendants and 10 other so-called high-value (i.e. tortured for several years in CIA secret prisons) prisoners are held. The request warned that the currently facility is “at risk of mechanical, electrical and secure-communications failure, which would be risky to the U.S. Army guards who work there.” and that the proposed new maximum-security facility should last for around 40 years. According to the Miami Herald: “With its current 15-captive population, building costs work out to $4.6 million per prisoner. As a presidential candidate, Donald Trump made two Guantánamo-related pledges: To “load it up with bad dudes,” and to reduce operational costs to “peanuts.” So far, neither has happened.” As the current camp is top secret and classified, very little is known about it, including the cost and condition, and even military access to the site is restricted.
Ahead of the resumption of pre-trial hearings in the case of Abd Al-Nashiri, accused of involvement in the bombing of a US naval vessel off the coast of Yemen in 2000, Judge Air Force Col. Vance Spath ordered warrants for the effective arrest of two civilian defence lawyers who resigned from the case and ignored his previous orders to attend the court. Rosa Eliades and Mary Spears resigned from the case in October over an ethical issue. The resignation of his legal team has left Al-Nashiri facing a death penalty case without a lawyer with expertise in such cases, and only one defence lawyer.
In the end, however, at the end of a week of proceedings, on 16 February, the judge cancelled the proceedings going forward indefinitely due to his inability to get the defence lawyers to return to the case, stating: “I am abating these proceedings indefinitely,” he said twice, at one point adding: “We’re done until a superior court tells me to keep going.”
On the other hand, Al-Nashiri's remaining defence lawyer, Navy Lt. Alaric Piette, said “the best move for the country and for justice is for the government to withdraw the charges.”
On 21 February, prosecutor Mark Miller filed notice of an appeal against this decision with the judge to be presented to the Court of Military Commissions Review, although no basis for the appeal was provided.
In Morocco, former prisoner Younes Chekkouri, who was released from Guantánamo in September 2015 to immediate arrest and detention in Morocco, was released after the Court of Appeal in Rabat acquitted him of a 5-year sentence he was given in May 2017 by the Criminal Court for “setting up a criminal gang and undermining the internal security of the State.”
As part of the plea bargain made with Saudi prisoner, Ahmed Al-Darbi, who pleaded guilty to various charges relating to an attack on a French tanker off the coast of Yemen in 2002, after having been tortured physically, mentally and sexually, and agreed to provide testimony against two other prisoners facing trial, he was due to be repatriated to Saudi Arabia on 20 February 2018, the deadline set in his 2014 plea deal. Although the US Defence Department has stated that it hopes he will be repatriated soon, this comes soon after the indefinite adjournment of the Al-Nashiri case, further undermining the military commissions system, when it cannot even bind the US government to act in accordance with its orders.
Here is the full response of Navy Cmdr. Sarah Higgins, spokeswoman for Detainee Affairs and the Office of Military Commissions, to a Feb. 20, 2018, query from the Miami Herald:
“Ahmed Mohammed Ahmed Haza al Darbi’s transfer from Guantanamo detention to Saudi Arabia will not take place today.
“Al Darbi’s plea agreement stipulated his transfer would occur after serving four years in U.S. custody. Today marks four years since he signed the agreement. We await assurances from the Saudi Arabian government to move forward on his departure.
“Al Darbi will remain at Guantanamo until all transfer details are concluded. Thus far, al Darbi has complied with all terms of his plea agreement. DOD [Department of Defense] hopes the transfer will take place soon.”
In a case brought by the Center for Constitutional Rights (CCR) on behalf of three Iraqi former Abu Ghraib prisoners against the private contractor CACI, a Virginia federal judge ruled that the treatment of the three men constitutes torture, war crimes, and cruel, inhuman and degrading treatment, based on a thorough review of U.S. domestic and international law; “The ruling also held that the men have sufficiently alleged that employees of private military contractor CACI Premier Technology conspired to commit and aided and abetted these crimes.” The case was brought almost 10 years ago by the CCR. It stated: “The decision is a historic judicial rebuke to the Bush administration’s torture paradigm, which had sought to evade the well-established prohibitions against torture, and is one of the clearest statements in the post-9/11 era that victims of torture and grave human rights abuses can access the courts for a remedy. The court confirmed what was plain to the eye: that the horrific treatment our clients endured at Abu Ghraib was unlawful and that, in a country operating under the rule of law, those responsible can be held accountable.”
According to its press release: “Today’s opinion includes a detailed account of what happened to CCR’s clients, Suhail A1 Shimari, Asa’ad Al-Zuba’e, and Salah Al-Ejaili, including:
[being] subjected to repeated stress positions, including at least one that made [Plaintiff Al-Ejaili] vomit black liquid; sexually-related humiliation; disruptive sleeping patterns and long periods of being kept naked or without food or water; and multiple instances of being threatened with dogs…being doused with hot and cold liquids…sexual assault and threats of rape; being left in a cold shower until [Plaintiff Zuba’e] was unable to stand; dog bites and repeated beatings, including with sticks and to the genitals…at least one [stress position] that lasted an entire day and resulted in [Zuba’e] urinating and defecating on himself; and threats that his family would be brought to Abu Ghraib…systematic beatings…with a baton and rifle, [being] he was hit against the wall; [being] forced to kneel on sharp stones, causing lasting damage to [Plaintiff Al Shimari’s] legs; …being kept in a dark cell and with loud music nearby; threats of being shot… electric shocks; being dragged around the prison by a rope tied around [Al Shimari’s] neck; and having fingers inserted into [Al Shimari’s] rectum.
The Court concluded: “it is clear that the abuse suffered by plaintiffs was intended to inflict severe pain or suffering and rises to the level of torture.””
The LGC has produced a new video showcasing the last twelve years of its protests against Guantánamo outside the US Embassy in Grosvenor Square, which closed in January:
The LGC will start its monthly Shut Guantánamo! demos outside the new Nine Elms Embassy on Thursday 1st March at 12-2pm. The address is 33 Nine Elms Ln, London SW11 7US, nearest underground: Vauxhall. More details available at: https://www.facebook.com/events/975903689224552/ All are welcome to join us.