Wednesday, November 01, 2017
The past month has been extremely busy in the courts, particularly the Guantánamo military commission, for prisoners. Much of this news, as dramatic as it is, has not been in the mainstream media. Below is a summary of the main developments as the war court has gone into meltdown.
On 10 October, the Supreme Court in the US brought an end to the long-running appeal case of Ali Hamza Al-Bahlul, a Yemeni prisoner who is the only prisoner serving a life sentence at Guantánamo as an alleged secretary and propagandist for Osama Bin Laden. The case has been heard three times and led to the quashing of former Australian prisoner David Hicks’ conviction when the charge of material support for terrorism was thrown out. Acquitted once on all charges, and once on this charge and the charge of soliciting murder, his charge for conspiracy, around which the controversy in the case - as to whether it is a war crime - revolved, remains. The decision leaves this question unsolved but allows Omar Khadr’s appeal – he too was convicted of conspiracy – to move ahead. US law professor Stephen Vladeck called the decision a “big win” for the US government. For years, since the 2009 conviction was appealed, the case has threatened to bring down the little legitimacy the Guantánamo military commission system had.
On 16 October, the Supreme Court then declined to hear a pre-trial challenge brought by Abd Al-Nashiri’s defence team to have a review of the his ordered, particularly to consider when the “war on terror” started as the offences he is accused of are prior to 2001. His lawyers argued that the fact that he had suffered severe torture should entitle him to a review and had it been established that his offences predate the “war on terror”, they could then not be tried at Guantánamo but before a federal court. The court has instead decided that the trial may go ahead and these issues can be resolved afterwards. Rather than slowing the trial down further, the court has decided that it should go ahead and then regardless of the outcome be appealed, at which stage it is likely to be quashed.The trial itself is largely just theatre. Lawyer Michel Paradis, who brought the case, stated afterwards: “The military commissions’ only reason for continuing to exist is to conceal this country’s use of torture.”
Just days before, on 13 October, Al-Nashiri’s defence quit in highly-classified circumstances, stating that “doing so was necessary because it was no longer ethical for us to proceed”. Chief Defense Counsel, Brig. Gen. John Baker agreed to disband the team. The issue at stake seems to relate to ongoing questions of the US government spying on confidential client-attorney conversations. The press release indicates that the defence became aware of new methods of intrusion – the use of microphones to listen in had previously been uncovered – “that make it ethically impossible for them to represent their client”.
This means that Al-Nashiri has lost his death penalty lawyer Richard Kammen and no longer has a “learned counsel” – Kammen – which is necessary for his trial to proceed. In addition, the confidential nature of the decision means that Al-Nashiri cannot be informed of the reasons either. The legal ethical issues mean that the lawyers cannot represent him until they are resolved and he is now only left with his military defence lawyer, who cannot defend him alone.
Following the unprecedented and shock removal of Al-Nashiri’s defence team, the judge Air Force Col. Vance Spath ordered them to appear at the next scheduled hearing on 30 October, stating while Baker had dismissed them, he had not. When the only plane carrying staff and observers to the war court left the US mainland the weekend before, the three lawyers were absent and have yet to appear at Guantánamo. Richard Kammen declared the order to return to Guantánamo “illegal”.
When only military lawyer Navy Lt. Alaric Piette appeared before the court on Monday 30 October, he agreed to continue to represent Al-Nashiri but said he could not do so without a learned counsel. The prosecution filed a motion to have the three absent lawyers held in contempt of court, which could land them 30 days in prison and a $1000 fine.
The prosecution ordered that Baker be questioned about his decision to dismiss them but on 31 October he refused to testify or take back his order.
Following a contempt of court hearing for the defence lawyers scheduled for 1 November, Al-Nashiri’s defence lawyer asked a federal judge to order a halt to this week’s pre-trial hearing as he does not have a defence team or a learned counsel. His lawyer, “Michael Paradis, said the military judge is violating Al-Nashiri's rights by pressing on with the pretrial process since the defendant faces the possibility of the death penalty.”
During the contempt hearing on 1 November, Baker was charged with contempt and sentenced to serve 21 days in his trailer at Guantánamo and pay a $1000 fine. The court has been adjourned until Friday. In a first, a US military lawyer has been sentenced by the Guantánamo military commission for defending the rule of law and due process in the act of defending his client.
With the severity of the current situation, Brig. Gen. Mark Martins has also decided as of 30 October to stop providing briefings for journalists and press conferences and may take further measures to prevent lawyers from reporting what is going on in the court. Ironically, as the Guantánamo war court goes into meltdown in a show worthy of a Hollywood war film, only one reporter has attended most of these hearings and has been alone in reporting them, alongside tweets from lawyers in the courtroom. Please visit www.miamiherald.com for the latest updates from award-winning journalist Carol Rosenberg. The issue has otherwise been completely ignored by the media, reflecting a general lack of interest or concern in what happens at Guantánamo, or the severity of the case, given the large number of people who died in the 2000 attack and the fact that the defendant faces the death penalty.
Confounding the war court situation, on 18 October, prison guards seized court-approved laptop computers and hard drives given to the five men accused of involvement in the September 2001 attacks to help prepare their death penalty case. The judge ordered staff not to look at materials on the computers shared by the defendants and their lawyers. Ahead of their pre-trial hearing resuming on the 18th, on Monday 16th October their lawyers were denied access to where they usually meet for confidential reasons until the judge again intervened.
The chief war crimes prosecutor Army Brig. Gen. Mark Martins, who has served for the past 6 years, has also had his retirement set back by the military from 1 November this year to 1 November 2019. He was initially supposed to retire in 2014. He is the chief overseer of war court cases and a case prosecutor in the two death-penalty cases involving 6 defendants.
On 13 October, Saudi prisoner Ahmed Al-Darbi, who pleaded guilty to war crimes in a plea bargain in 2014, was sentenced by the military court to 13 years in prison for his “role in a 2002 attack by Al Qaeda on a French oil tanker off the Yemeni coast.” Mr Al-Darbi’s plea bargain was secured in return for him serving his sentence in his native Saudi Arabia and agreeing to testify against two other prisoners facing trial. He has provided video evidence for those cases. His confession was secured through the use of torture, including rape, when he was a prisoner in Afghanistan. In addition, he was already in US military detention when the attack took place and had provided intelligence to the US military about potential attacks before it happened.
His sentencing has raised another key issue: will the Trump administration honour the agreement made by Obama to allow Al-Darbi, who has already served more than 15 years, which will not be taken into account, to return to Saudi Arabia to serve his sentence there?
The New York Times' claim that his “sentencing completed a rare successful case before the military commission system” is a shameful endorsement of torture and other war crimes committed against Al-Darbi.
A mobile MRI unit arrived at Guantánamo Bay on a 4-month temporary loan two years after one had been ordered by a military judge for prisoner Abd Al-Nashiri. A brain scan is necessary for his death-penalty trial to go ahead. His lawyers have argued that if he has suffered brain damage and this can be demonstrated, his case should not be tried as a death-penalty case. The equipment has been hired at a cost of $370,000. How successful the treatment will be and what impact it may have on his case remain to be seen, particularly as part of the torture he suffered while a CIA prisoner in 2002-2006, for which he has successfully sued Poland already, involved been buried alive, an experience that may make one or several scans a difficult experience to undergo. His lawyers had previously asked for him to be transferred to the US mainland for treatment but this was ruled out by the judge.
Prosecutors in the case of five other men also potentially facing the death penalty for their alleged involved in attacks in New York City in 2001 have invited their defence lawyers to apply for brain and other body scans of their clients as a possible mitigating factor in their cases too before the unit leaves Guantánamo in February 2018.
The US military has abandoned its long-criticised painful policy of force feeding hunger striking prisoners and is now no longer force feeding them, which could lead to their death. Reprieve claims that the policy for two of its clients, on hunger strike since 2013, is to leave them until they suffer organ failure and then restart force feeding in an attempt to deter them from continuing their protest action against their continued detention without charge.
A case brought by former prisoners Mourad Benchellali and Nizar Sassi, released in 2005, against senior US officials running Guantánamo Bay at the time, in the French courts has been dismissed by a judge. They brought a complaint against the torture and arbitrary detention they suffered. The two men hoped to have General Geoffrey Miller, the commander at the time, summoned but he failed to appear. Their lawyer has said that they will appeal this decision.
In an appeal hearing against his conviction last year for alleged involvement in an armed robbery, former Belgian prisoner Moussa Zemmouri heard the public prosecutor ask for his sentence to be increased to five years and partially suspended. Zemmouri was initially given a 40-month suspended sentences for conspiracy but denied the claims from the outset and said he would appeal. In January this year, Zemmouri brought a claim before the UN Committee Against Torture against the Belgian government for its involvement in his ordeal and knowledge of the torture he suffered. That claim is ongoing.
Background to his case: https://onesmallwindow.wordpress.com/2016/07/22/former-guantanamo-prisoners-convicted-in-belgium/
On 20 October, a district court in Kazan, Russia, charged former Guantánamo prisoner Airat Vakhitov with involvement in a 2011 video, which allegedly resurfaced on social media in 2016, in which he is reported to praise Al Qaeda and jihad. An international arrest warrant, a common ruse used by the Russian authorities to net dissidents abroad, was issued the day before. The move paves the way for the long-sought extradition of Vakhitov back to the Russian Federation. Vakhitov, currently in prison without trial for over one year in Turkey, has used his lengthy absence from the country to work as a journalist and expose the Russian authorities’ abuse of the human rights of its Muslim minorities.
Background to his case: https://onesmallwindow.wordpress.com/2017/03/18/whos-afraid-of-airat-vakhitov/
The stipend to cover living costs paid to 6 former prisoners living as refugees in Uruguay is due to come to an end in January 2018. Future provisions for the 6 men who have not been able to find sustainable jobs or incomes in their new country, since 2014, have not been disclosed. In addition, Jihad Diyab, who has long sought to leave the country, has asked to be allowed to move to an area called Rivera which has an existing Muslim community where he plans to open a shop and is an area that is cheaper to live in than the capital Montevideo. The request has neither been agreed or turned down yet.
An unnamed US citizen who was allegedly fighting for ISIS and turned himself over to the US military in Iraq is currently subject to an ACLU court battle to represent him. The case of the man, who allegedly surrendered himself and admitted he had fought for ISIS, has raised a lot of important questions about the treatment of prisoners and whether they will end up at Guantánamo Bay and what happens when they are a US citizen, such as this man. The man was allegedly visited by the Red Cross in early October but has otherwise remained detained without charge and incommunicado and his identity has not been released. In a statement, the ACLU said, “The U.S. government cannot imprison American citizens without charge or access to a judge. It also cannot keep secret the most basic facts about their detention, including who they are, where they are being held, and on what authority they are being detained. The Trump administration should not resurrect the failed and unlawful policy of ‘enemy combatant’ detentions.” The longer the Trump administration takes to decide on the future of the prisoner the more complications arise for it.
The October Shut Guantánamo! monthly demonstration was on 5 October. Our next monthly demonstration is on Thursday 2 November outside the US Embassy, Grosvenor Square, W1A, from 12-1pm and opposite Marble Arch, outside Speaker’s Corner, Hyde Park from 1.15-2.15pm: https://www.facebook.com/events/1458945527487035/
Thursday, September 28, 2017
On 7 September, the Inter-American Commission on Human Rights (IACHR), at its 164th session in Mexico City, heard the merits in a case brought by former Algerian Guantánamo prisoner Djamel Ameziane against the United States (Ameziane v United States) for the abuse and arbitrary detention he suffered during his 12 years at Guantánamo Bay, where he was never charged or tried. He was then returned to Algeria by the Obama administration against his will where he faced incommunicado detention and trial. At the time, he had been seeking asylum elsewhere should he be released from Guantánamo, and had reasonable grounds to fear persecution on his return to a country he had fled in the 1990s on the basis of his Berber ethnic minority status. The case was brought by the Center for Constitutional Rights (CCR) and the Center for Justice and International Law (CEJIL); this was a landmark hearing as it is the first time a court with international jurisdiction in the Americas has heard such a merits case. A ruling in favour of Ameziane by the court would put considerable pressure on the US government and would add to the international law pressure to close Guantánamo.
Lawyers at the hearing urged the IACHR to declare that the US government violated his human rights and order reparations, including access to adequate medical care, financial assistance for basic needs, return of his personal property, and a public apology for what was done to him. Although Djamel Ameziane was unable to attend the hearing, he submitted a statement to the hearing setting out his case and his feelings towards his ordeal at Guantánamo Bay and the difficulties he has faced in re-establishing his life since his release: https://ccrjustice.org/sites/default/files/attach/2017/09/Ameziane_Statement_IACHR_MeritsHearing_0.pdf
In early September, the CCR also made an emergency request to the courts for an independent medical evaluation of one of its remaining clients at Guantánamo, 43-year old Yemeni Sharqawi Al-Hajj, who is currently on hunger strike in protest at his ongoing detention. Al-Hajj suffers from a number of illnesses that doctors “believe are symptoms of severe liver disease or another potentially life-threatening underlying illness, or associated with his torture in secret prisons for two years before Guantánamo” and which his lawyers believe are being worsened by his hunger strike.
Nashwan al Tamir, known to the US military as Abdul Hadi Al Iraqi, had surgery on his spine twice this month. Needing surgery since January this year, neurosurgeons arrived at Guantánamo ahead of Hurricane Irma to operate on his back. Awaiting trial on non-capital charges, he uses a wheelchair and has had back problems for more than a decade, which his lawyers attribute to his treatment in US military detention. However, the US military claims he has been refusing treatment. Surgeons had to be rushed in urgently after he complained that he lost feeling in his lower body. His lawyer claims he has long been at risk of paralysis and that the military is withholding information about his condition from them. http://www.miamiherald.com/news/nation-world/world/americas/guantanamo/article171882522.html
On 21 September, they filed a petition to the courts to ask a federal judge to intervene in his medical care, claiming that he only received the two operations after they consulted external doctors on his condition. The doctors concluded that “he was at risk of paralysis from a condition damaging his spine and nervous system.”
They are asking the judge to appoint and fund an independent medical expert to supervise his care and to “order the prison to release his full medical records to outside experts as well as to his medical team.” The request is extraordinary and much secrecy surrounds medical practices at Guantánamo. In their petition, his lawyers wrote, “The deliberate indifference and disregard of the United States toward petitioner’s health and safety have put him at immediate risk of permanent paralysis or worse, and constitute cruel and unusual punishment in violation of the Eighth Amendment.”
His lawyers have been forbidden from visiting him while he recovers and his October pre-trial hearing has been cancelled. His next hearing is scheduled for mid-December.
At a key national security conference this month, Brigadier General John G. Baker, the Chief Defense Counsel of the Military Commissions Defense Organization gave a speech at George Washington University Law School in which he spoke critically of the military commission system at Guantánamo stating that defence lawyers defend “the rule of law from a military commission apparatus that is flawed in both design and execution” and described the commissions as “a failed experiment”.
Omar Khadr was back in court in Edmonton, Canada, on 15 September to ask to have his remaining bail conditions loosened further, to include unfettered access to his sister Zaynab Khadr, who lives abroad. The judge, however, said that his sister is still an Al Qaeda supporter and maintained the restrictions that Khadr and his sister communicate only in English and in the presence of a court-appointed supervisor. The judge also refused to relax his travel restrictions, meaning he still has to ask permission to travel outside the province of Alberta within Canada. He has, however, had restrictions on his internet usage lifted.
On 22 September, a federal court ruled that three Iraqi citizens tortured and held prisoner at the Abu Ghraib prison in Iraq by US contractor CACI could prosecute the company and hold it responsible for their treatment. The case was originally brought in 2008 and the ruling will allow the men to hold the company directly responsible.
According to the CCR, which is bringing the case on behalf of the men, “U.S. military investigators long ago concluded that CACI interrogators conspired with U.S. soldiers, who were later court martialed, to “soften up” detainees for interrogations; according to statements by co-conspirators. A U.S. Army general referred to the treatment as “sadistic, blatant, and wanton” criminal abuses. Al Ejaili, Al-Suba’e, and Al Shimari [the complainants] were subjected to electric shocks, sexual assaults, sensory deprivation, mock executions, stress positions, broken bones, deprived of oxygen, food and water, stripped and kept naked, forced to witness the rape of a female prisoner, as well as experienced other dehumanizing acts of torture and threats to themselves and their families.”
The September Shut Guantánamo! monthly demonstration was on 7 September. Our next monthly demonstration is on Thursday 5 October. It is a special demonstration to mark 16 years of the war in Afghanistan, which gave rise to detention at Guantánamo and hosted a number of secret prisons run by the CIA. We will stand in solidarity with the people of Afghanistan and particularly the large number of refugees being repatriated from across Europe and elsewhere to Afghanistan even though the conflict is escalating as President Trump sends more troops there. This demonstration will be outside the US Embassy, Grosvenor Square, W1A, ONLY from 12-2pm: https://www.facebook.com/events/1470694673046702/