Friday, August 01, 2014
LGC Newsletter – July 2014
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!”
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: http://truth-out.org/opinion/item/25161-the-trials-of-alleged-tween-terrorist-omar-khadr-of-canada
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: http://justsecurity.org/12996/letter-editor-al-bahlul/
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.
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.
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: https://www.facebook.com/events/262069207321360/