Sunday, August 31, 2014

LGC Newsletter – August 2014

British residents:
According to human rights NGO Reprieve, which represents him, Shaker Aamer has reportedly been beaten at Guantánamo Bay, as part of a new crackdown on prisoners protesting their detention without charge. The claim comes in letters it received from another detained client Emad Hassan telling of a new “standard procedure” called Forcible Cell Extraction [FCE] where a team is brought in to beat prisoners. According to Reprieve, “‘Forcible Cell Extraction’ or ‘FCEing’ is the process by which a detainee is forced out of his cell by a group of armed guards, often before being taken to the force-feeding chair. Mr Aamer has previously described being beaten by the FCE team up to eight times a day”. Other prisoners have been beaten too.

Guantánamo Bay:
A US court of appeal ruled that it is okay for military guards at Guantánamo Bay to carry out intimate physical searches of prisoners, which have been used to prevent them from seeing their lawyers. Intimate searches of the prisoners’ genital area and body cavities before being allowed to meet their lawyers have been used to intimidate and humiliate prisoners. The practice started at the height of the ongoing hunger strike in May 2013, with the death of Yemeni prisoner Adnan Farhan Abdul Latif, allegedly from a drug overdose in September 2012, being given as a pretext. Overturning a decision that prevented such searches, Judge Thomas B. Griffith said, “Although we must not give prison administrators a free hand to disregard fundamental rights, this case is a far cry from instances where administrators have acknowledged their intent to extinguish prisoner rights and acted accordingly. The tenuous evidence of an improper motive to obstruct access to counsel in this case cannot overcome the legitimate, rational connection between the security needs of Guantánamo Bay and thorough searches of detainees. Similar searches are carried out on prisoners held in US “supermax” maximum security prisons.  

The pre-trial hearing in the military tribunal of Abd Al-Nashiri accused of involvement in bombings of US and European interests in the Gulf of Aden in the early 2000s resumed on 4 August. His lawyers asked that the jury should know what method would be used to execute him if convicted. The prosecution retorted that the execution method is not a concern for the jury and is not usually discussed until the trial has started. The actual trial is due to start in February 2015, however given the various interruptions and stalling of this kangaroo court procedure, it is likely to start later.
This is the first time that the new judge in this case Air Force Colonel Vance Spath has overseen the pre-trial hearings. Al-Nashiri’s defence lawyer Richard Kammen asked for Spath to stand down due to his possible bias or lack or neutrality as a member of the defence team worked on a separate death penalty sentence Spath oversaw in 2005, however Spath denied this motion and remains as the judge.
On 11 August, Spath threw out collateral charges related to a 2002 Al Qaeda attack on a French oil tanker, the Limburg. This was on the basis that the prosecution did not produce any evidence about the bombing. The importance of this charge related to earlier issues concerning whether Guantánamo military commissions have the jurisdiction to consider alleged crimes that took place before 11 September 2001. Commenting on the decision, Al-Nashiri’s lawyer Richard Kammen said “the decision demonstrated the need to try the case in federal court.
Pre-trial hearings in the other Guantánamo military commission of five prisoners alleged to have been involved in the 9/11 attacks in New York in 2001 recommenced on 11 August.
A motion was brought at the court on whether to sever one of the defendants Ramzi bin Al-Shibh from the case, to allow him to face a separate trial as certain issues only affect his case, he is not facing all of the same charges and severing the case into two would allow the other four defendants to make progress in their case. Although the prosecution wanted to keep the cases joined, the judge and Al-Shibh agreed to the motion.
Khalid Sheikh Mohamed’s military lawyer Major Jason Wright is no longer representing him, and has resigned both from the case and the US army. Having taken on the case in 2011, he was asked in February to take a 9-month graduate military law course, during which he would be absent from the case. He asked for a deferral but when this was refused with the ultimatum that he either take the course and leave the case or leave the army, he chose the latter course.
Last month, Kuwaiti prisoner Fawzi Al-Odah was cleared for release following a periodic status review after 12 years of detention without charge or trial. Nonetheless, on 3 August, the US District Court for the District of Columbia accepted a US government motion to dismiss a habeas corpus case he filed in September 2013 calling for him to be released by the end of 2014 with the then stated end of hostilities and US withdrawal from Afghanistan by the end of this year, as this is the alleged reason for his detention. Without hostility in Afghanistan, there would be no basis for his detention. The judge dismissed the case as the court lacked jurisdiction and as the claim is based on future events that may not happen. His claim that his ongoing detention was punitive and not preventative was also dismissed.

British company G4S has been given a $118 million (£70 million) contract to provide “base support operating services” at Guantánamo Bay. The controversial outsourcing company currently “faces an ongoing investigation by the Serious Fraud Office over its involvement in last year's scandal over the tagging of criminals, in which it and rival firm Serco admitted charging taxpayers for electronically tagging individuals who were either in prison or dead.” It has also been implicated in Palestinian prisoner abuse in Israel.
Reprieve has made a complaint to the Department for Business, Innovation and Skills (BIS) as by working there, the company may contribute to ongoing human rights abuses. “A bulletin issued by the US Department of Defence stated that G4S's responsibilities would cover "support vehicles and equipment" and "operating services" at the base, such as housing and facilities for soldiers and their families.”

The hunger strike at Guantánamo Bay, ongoing now for more than 18 months, has cost over $300,000 just on providing the liquid nutritional supplements the prisoners are often force fed. Over a dozen prisoners are reported to still be refusing food and are almost all force fed by nasal tube.
A military nurse who refused to force feed hunger-striking prisoners at Guantánamo has been moved from the prison facility and could face court-martial for his action. Such a move could backfire as it would raise public awareness about the hunger strike and the methods used to repress it.

Extraordinary Rendition:
“We tortured some folks” was a flippant response given by President Barack Obama at a press briefing on 1st August. While an admission that “In the immediate aftermath of 9/11, we did some things that were wrong. We did a whole lot of things that were right, but we tortured some folks. We did things that were contrary to our values”, the statement, relating to the as-yet unpublished Senate torture report shows the US is unrepentant over its commission of crimes against humanity and that for the CIA, the use of torture is a fairly standard procedure. In spite of ongoing controversy and debate, no date has yet been given for when the heavily-redacted report is likely to be released.

One item that has already emerged from the unpublished Senate torture report is further details on the use of the island of Diego Garcia by the US military for torture flights and to run a torture facility in the British-administered Chagos Archipelago in the Indian Ocean. It has emerged that the UK discussed a US request to house a Guantánamo-style prison with place for up to 500 detainees there. The request was rejected and the government is under growing pressure to come clean on what it knew about US use of the facility.

The US has released a number of prisoners held indefinitely at Bagram, among them two Yemenis, one of whom is suffering from leukaemia:
Nine Pakistani prisoners were also released. However, in spite of having been held without charge or trial for years, once released over the border, they were arrested in Rawalpindi and remain held incommunicado by the Pakistani security services. Lawyers have demanded to know their whereabouts. The Afghan president Hamid Karzai also expressed concerns about the release of the untried Pakistanis, questioning whether they still pose a risk to his country. They apparently did not a risk in the first place, having never been charged or tried, and detained and released without due process.

LGC Activities:
The August “Shut Guantánamo!” demonstration was attended by 7 people. The September demonstration will be at 12-1pm outside the US Embassy and 1.15-2.15pm outside Speaker’s Corner, Marble Arch on Thursday 4th September:

Friday, August 01, 2014

LGC Newsletter – July 2014

British residents:
Former British resident Ahmed Belbacha who returned to Algeria earlier this year was placed under judicial supervision upon his return to the country. At the end of June, he had a court hearing concerning his conviction in absentia in 2009 before an Algerian court for supporting a foreign terrorist organisation, in which he was given a 20-year sentence. The sentence is being reconsidered and at the hearing, the judge at the Algiers Criminal Court set the hearing back to a later date – possibly in September or October – as a large number of documents are missing from the original case file, including interviews and reports, as he had not been questioned about the charges in the past and as no psychiatric evaluation has been carried out on Belbacha. He had been placed in prison the day before but the judge asked for him to be released. His lawyer stated after the hearing that now that Belbacha is in Algeria and able to defend himself in court, the charges are no longer viable and that he is certain that Belbacha will be acquitted as “the case against him is completely non-existent!”

Guantánamo Bay:
Following a ruling by the judge overseeing proceedings at the Guantánamo military tribunal, James Pohl, ordering the CIA to disclose files detailing the torture Abd Al-Nashiri was subject to while imprisoned in secret CIA prisons in different countries, one of the defendants accused of involvement in the 9/11 attacks, Ammar Al-Baluchi has asked for similar files related to the torture he faced to be disclosed and taken into consideration in his case. It is feared that this – consideration of the application by the judge and then disclosure and its impact on the current case – could further delay proceedings, however with the show trial still firmly stuck on procedural issues almost 13 years after the offence took place, and no timeline for an actual trial, the US is no hurry to prosecute or take the case forward.
Judge Pohl has stepped down from the other case currently being heard by the Guantánamo military tribunal, that of Yemeni Abd Al-Nashiri accused of involvement in bombings of US naval vessels in the Gulf of Aden in 2000, due to scheduling conflicts and to ensure continuity in the 9/11 case. He will be replaced by Air Force Col. Vance Spath.
The case of the 5 defendants in the 9/11 case has been split as on 24 July Judge Pohl ruled that the case of Ramzi Binalshibh should be severed and dealt with separately and alone as legal issues relating to his case alone are holding up the trial of the other four defendants. The first issue to be considered in Binalshibh’s case is whether or not he has the mental capacity to stand trial having been diagnosed in 2008 as having a “serious mental disease” by military doctors.

A redacted memo issued by the U.S. Office of Legal Counsel (OLC) in a case related to the death of American Anwar Al-Awlaki released in June under a Freedom of Information order and dated 2010, shortly before Canadian former Guantánamo child prisoner Omar Khadr’s 2010 military commission hearing, shows that the US deliberately designated Khadr an “unprivileged belligerent” to charge him with offences that the US knew did not exist under US or international law and to deny him protection under the Geneva Conventions.
On 30 June, Khadr’s US lawyer filed a motion to have the stay on Khadr’s case, imposed in March, lifted and his conviction quashed on the basis that “the disclosure of a previously secret memorandum […] which provided authoritative legal guidance to the Department of Defense several months prior to Mr. Khadr’s guilty plea, vitiates the theory of criminality underlying this prosecution and therefore defeats the premise of the Court’s order”, and consequently that the charges and conviction of Omar are bogus. On 7 July, the US government’s lawyers filed a motion to have this dismissed, stating that the memo is “irrelevant” to Khadr’s case. Khadr’s U.S. lawyer Sam Morison called this response predictable, however the court denied Khadr’s motion before his lawyers had an opportunity to respond.
On 8 July, Khadr won his appeal before the Alberta Appeal Court in Canada for him to serve a youth sentence as opposed to being held as an adult. This would entail the transfer of Khadr to a provincial jail where he will have better opportunities for rehabilitation and parole. The judge was quite unequivocal in her ruling that the offences could only mean that Khadr be held as a youth offender in Canada, given his age at the time. Nonetheless, he remains at the Bowden Institute, a medium-security adult prison, following an appeal to the Supreme Court by the Canadian government. Khadr agreed to stay where he is pending this appeal as he is comfortable in his current environment and provided that the ruling he is being held as a juvenile applies.
Khadr’s Canadian lawyers have also brought a lawsuit against the federal government and the Canadian corrections system to allow Khadr the opportunity to speak to the media. Held since 2002, Khadr has never once – not in the media, not in the courts or in any public writings – had the opportunity to present his side of the story. Vilified by the Canadian media, he has never actually met or spoken to any journalists.
Reports issued by Canadian Prime Minister Stephen Harper’s own officials and office show that Omar Khadr is not a terrorist and is essentially a “good kid”, in spite of constant statements by Canadian government upholding his military tribunal conviction, which falls far below the conditions necessary for trial in Canada.
Sunday 27 July marked the 12th anniversary of Omar Khadr’s capture by the US following a gun battle in Afghanistan in which he was severely injured. The following article provides a good overview of what has happened recently in his case and where it currently stands:

Judgment was handed down in the long-awaited military commission conviction appeal by Yemeni prisoner Ali Hamza Al-Bahlul, accused of providing Al Qaeda’s PR by making promotional videos for the organisation, and the only prisoner to be given a life sentence. In 2008, he was convicted on three charges of conspiracy, providing material support for terrorism and soliciting others to commit murder. Following the successful appeal by fellow Yemeni Salim Hamdan of his conviction in 2012, Al-Bahlul appealed as well and his convictions were all quashed by the federal appeals court in January 2013. In that case, the judges gave no reasoning for their decision to quash the convictions. Given the huge ramifications the case has on other pending military commissions and appeals of convictions, the US government sought a retrial “en banc” (where the case is then reheard by all the judges in the appeal court – 7 as opposed to 3) which was granted. The US government mainly contended that while the charges were not international war crimes – which it concedes – they could be considered war crimes under US domestic law.
Rather than simplify and clarify matters, the case has instead made them much more complex and unclear. The 7 judges ruled to quash Al-Bahlul’s convictions for material support for terrorism and solicitation but upheld the conviction for conspiracy, a charge other prisoners have been convicted of and feature in other pending military commissions. The judgment overturns parts of the Hamdan ruling and also ruled to return the case back to the original 3-judge panel to consider some of the issues related to the conspiracy conviction, ultimately meaning that it could be overturned. Lawyers for Al-Bahlul have the option of waiting to see what the original panel then decides – not until at least next year – or appealing to the Supreme Court. In either case, whether or not his convictions are upheld, the future remains extremely precarious for Al-Bahlul himself, who remains imprisoned at Guantánamo - the quashing of his convictions could see him become a “forever” prisoner:
The appeals of former prisoners Canadian Omar Khadr and Australian David Hicks were stayed in March pending this judgment. The judgment as it is should mean that Hicks’ sole conviction for material support is now automatically invalidated and that this is purely an administrative matter. However, both he and Khadr, for whom the judgment is more obscure, may still have to wait along with Al-Bahlul the outcome of this judicial wrangling over the essentially flawed military commission process.

Uruguay is likely to accept 6 prisoners over the coming month. Having asked to resettle a number of prisoners earlier this year, an issue raised during a visit by Uruguayan president Jose Mujica to the US in April, the US has finally completed the necessary paperwork on its side. The six are likely to include 4 Syrian prisoners, a Palestinian and Tunisian, all of whom have never been charged or tried and have long been cleared for release, but have not been as there is nowhere safe to send them. Uruguay anticipates hosting them as regular refugees.
One of the six is alleged to be Syrian Abu Wael Dhiab, currently on hunger strike and who has brought a high-profile court challenge against the Pentagon’s procedures for forcibly feeding detainees who are on a hunger strike. His transfer would most likely render his lawsuit moot, although there are several similar challenges.

Following two separate appearances before the Periodic Review Board last month, the Board has decided to clear Kuwaiti Fawzi Al-Odah for release while continuing to deem fellow countryman Fayiz Al-Kandari “almost certainly retains an extremist mindset and had close ties with high-level al-Qaida leaders in the past” and will remain held at Guantánamo indefinitely. Neither man has ever been charged or tried in the past 12 years of imprisonment.
Although the US has cleared 4 prisoners for release since restating the reviews over the past year, none of the prisoners cleared have been released.

Extraordinary Rendition:
Amid growing demands for the UK government to admit to the extent of US use of the British-administered territory of Diego Garcia in the Indian Ocean for the extraordinary rendition programme, the government reported in parliament that files related to the issue had been destroyed by water damage during recent flooding.
Accused of a cover up, especially as there had been no substantial rain at the time the damage is claimed to have occurred, a week later it then reported that the files had been salvaged and dried out. The UK government is still refusing to admit the full extent of its own complicity in the extraordinary rendition programme and what it knew at the time of the alleged use of this territory.

One prisoner who is alleged to have been flown through Diego Garcia, Libyan Abdel Hakim Belhadj, and his wife Fatima Bouchar, who were rendered from Southeast Asia to Libya in 2004 with the collusion of the UK brought an appeal on 21 July against a High Court ruling in favour of the government that he could not sue MI6 and the British government for their involvement in the rendition of himself and his family.

Former Bagram prisoner Yunus Rahmatullah, who was captured by British troops in Iraq in 2004 and handed over to the US who rendered him to Bagram in Afghanistan, from where he was released to Pakistan in April this year with other Pakistani prisoners is bringing a lawsuit against the Ministry of Defence and the Foreign Office for complicity in his torture and abuse he suffered in both Iraq and Afghanistan over 10 years. In 2011, the Court of Appeal ruled that he was unlawfully detained but in the Supreme Court, government lawyers were able to successfully claim that the UK could not get the US to act to release him.

Judgment was handed down by the European Court of Human Rights in Strasbourg on 24 July ruling that Poland had acted in breach of its obligations under the European Convention on Human Rights, particularly as concerns the absolute ban on the use of torture, when it hosted and operated a secret CIA torture prison in Stare Kiejkuty. The facility has since closed down. The case was brought by two prisoners currently facing military commission at Guantánamo Bay, Abu Zubaydah and Abd Al-Nashiri, who both “disappeared” for at least two years into the CIA’s networks of secret prisons around the world. The former was held and tortured in Poland for 6 months and the latter for 9 months. The court found Poland guilty of involvement in extraordinary rendition and ordered the Polish government to pay each man €100,000 in compensation and a further €30,000 to Abu Zubaydah in costs. The judgment outlines the journey of the two men to Guantánamo and the horrific torture they faced at the facility. This is the second time the court has ruled against a European state for complicity in rendition, and further cases are pending against Lithuania and Romania. A major blow for the CIA’s rendition programme, while the Polish government gets a slap on the wrists and is ordered to pay a fine, no agents involved have been prosecuted as yet and the CIA is still not subject to any prosecution, while Abu Zubaydah and Al-Nashiri, the victims, face military commissions and ongoing detention at Guantánamo and have never been given the opportunity for torture rehabilitation. In many ways, outside of the legal framework of using the law to check the extralegal behaviour of governments, the judgment remains largely pyrrhic unless it can in some way influence their respective military commissions.

LGC Activities:
The July “Shut Guantánamo!” demonstration was attended by 4 people. The August
demonstration will be at 12-1pm outside the US Embassy and 1.15-2.15pm outside Speaker’s Corner, Marble Arch on Thursday 7th August: