Tuesday, February 27, 2018

LGC Newsletter – February 2018

Guantánamo Bay

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.
Pentagon statement:
Today, Secretary of Defense James N. Mattis rescinded the designations of Harvey Rishikof as the Director of the Office of the Convening Authority for Military Commissions and as the Convening Authority for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 Additionally, William S. Castle, acting General Counsel, rescinded the designation of Gary Brown as the Legal Advisor to the Convening Authority.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.”

Extraordinary Rendition
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.””

LGC Activities:
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.


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