Thursday, November 30, 2017

LGC Newsletter – November 2017

Guantánamo Bay
As reported in last month’s newsletter, chaos continued this month in the military tribunal pre-trial hearing of Abd Al-Nashiri, who is facing the death penalty for his alleged involvement in attacks on US navy vessels in the Gulf of Aden in 2000. Al-Nashiri’s lawyers who refused to attend court and even travel to Guantánamo in the final week of October also refused to attend a hearing on 2 November at which they were ordered to appear. The issue revolves around a secret ethical problem concerning client-lawyer confidentiality. The judge in the case Air Force Col. Vance Spath has stated that only he has the authority to dismiss the lawyers who quit with the permission of the chief defence counsel for military commissions, Brig. Gen. John Baker. Instead, the three lawyers have taken legal measures in their states to avoid arrest.
The following day, 3 November, Brig. Gen. John Baker who had been confined to his quarters at Guantánamo on 31 October after being sentenced to 21 days’ confinement after being found in contempt of court in this dispute – when he refused to order the other lawyers to return to the case – was released by the Pentagon. His has been the only detention at Guantánamo under President Trump. The day before lawyers filed a petition in the federal courts in the US challenging his detention. The sentence was not removed but deferred while the punishment was reviewed. A fine imposed on him has also been frozen.

Nonetheless, the hearing continued on 3 November. The judge said that he chose issues that did not require a capital defender – necessary in a death penalty case and a role played by death penalty lawyer Richard Kammen until he resigned – while he postponed dealing with what would happen to the three lawyers who had left the case. With just one military lawyer representing Al-Nashiri, the defence did not question witnesses and the pre-trial hearing has focused more on the authority of the judge and the court than issues related to the case.
One of the witnesses in the case, law professor Ellen Yaroshefksy also asked the courts to provide her with protection against being ordered to testify by video link in the case. Yaroshefksy provided the advice that led to the lawyers quitting the case, although she does not have access to confidential material. The judge ordered her to appear via video link to answer questions about an ethics opinion she gave the lawyers in October that they used as a basis for their resignation. Yaroshefksy’s lawyers argued “that the Guantánamo war court “lacks any authority to detain or seize United States citizens.””
However, she was unsuccessful and was then ordered to testify on 17 November. At this hearing, at the end of three weeks of pre-trial hearings in his case dominated by other issues, Judge Spath asked Al-Nashiri if he wanted his long-serving defence team to return to court. Concerning Richard Kammen, “I believe he chose to leave this case, and I support him,” was Al-Nashiri’s response, even though the decision does not ultimately lie with him. “All the attorneys are free to have their own opinion, and I support them. In other words, I cannot force anyone to come here,” Nashiri told the judge.
As a solution to the deadlock, the judge ordered another lawyer Brian Mizer to act as “learned counsel in this case”, the death-penalty defender. Mizer has worked on other military tribunal cases but it is unclear that he fits the criteria for the role.
On 22 November, the Pentagon completed its review of Baker’s case and upheld the contempt charge. His confinement was not ordered again however, and the court was also asked to ensure that measures are taken to protect client-lawyer confidentiality, which appears to be at the heart of this dispute.

With the assistance of one of Omar Khadr’s Canadian lawyers Nate Whitling, former Algerian prisoner Djamel Ameziane is suing the Canadian government for CAN$50 million for its alleged involvement in his abuse by the US. He claims that the Canadian government co-operated with the US while he was held at Guantánamo. He was never charged or tried at Guantánamo.
In 1995, Ameziane sought asylum in Canada and lived in Montreal. The US alleges that he worshipped at the same mosques as members of Al Qaeda. Canadian intelligence gathered intelligence on him and the Montreal Muslim community while he was a resident there. His asylum claim was rejected and he went to Afghanistan instead of going back to Algeria. Ameziane claims that part of the intelligence used by the US to decide to detain him at Guantánamo was supplied by Canadian intelligence.
Ameziane also alleges that he was interrogated many times by Canadian officials at Guantánamo who were aware of the abuse of prisoners and that he was being held without charge and without a lawyer.
Nate Whitling has said that Ameziane’s case “calls for a full-scale public inquiry into Canada’s alleged role in the treatment of innocent military detainees held in Guantanamo Bay.”

On 7 November, lawyers from Reprieve representing hunger-striking Pakistani prisoner Ahmed Ghulam Rabbani, 47, brought a case before the federal courts claiming that he is being starved at Guantánamo following a new military policy since September not to force feed hunger striking prisoners until they are close to death. Five prisoners are reported to be affected. The US military claimed in response that he is actually eating and does not need to be force fed any longer. His lawyers are seeking an external medical assessment of his condition and to have his medical records released.

The mobile MRI unit leased by the Pentagon for 4 months at Guantánamo to scan Abd Al-Nashiri’s brain as part of his death penalty trial is broken. It does not work and requires maintenance meaning that it effectively cannot be used. According to the US military, it was delivered and installed correctly but requires liquid helium which is no longer available, and no one appears to know why. A judge ordered a scan of Al-Nashiri’s brain and for an MRI machine to be brought to Guantánamo for this purpose but it is not clear that this will take place. The lease on the equipment is until February.

Extraordinary rendition
On 3 November, the chief prosecutor of the International Criminal Court announced that she will seek to start an official investigation into potential war crimes during the war in Afghanistan. Although the specific parties to be investigated were not named, the investigation is likely to cover possible war crimes by the Taleban, associated groups and the US military and the CIA. As Afghanistan only signed up to the court’s statute in 2003, crimes committed after that period will only be considered. Bensouda said that if authorised, her office will investigate "in an independent, impartial and objective way, crimes within the court's jurisdiction allegedly committed by any party to the armed conflict". The preliminary investigation has been ongoing for over a decade and this case would for the first time the court looks beyond international war crimes in Africa. An earlier report by her office stated that there was a “reasonable basis to believe” at least 61 prisoners had been tortured by the US military and the CIA. The crimes largely relate to 2003-4 and will probably include secret CIA-run prisons in the country but will not include other allies outside of the USA. The USA, which is not a party to the court, has tried to frustrate investigations throughout the process.

In performance of her sentence for her involvement in CIA abduction and rendition to torture in Milan of Egyptian Imam Abu Omar, former CIA agent Sabrina de Sousa has been ordered to carry out 3 year’s community service in Italy.

LGC Activities:
The November Shut Guantánamo! monthly demonstration was on 2 November. Our next monthly demonstration is on Thursday 7 December 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: It is our last demo on 2017 and probably one of the last few at this site before the US Embassy relocated to Nine Elms. Please do join us!