Thursday, March 29, 2018

LGC Newsletter – March 2018

Guantánamo Bay
The UN Working Group on Arbitrary Detention has declared that the US’ detention of Pakistani national Ammar Al-Baluchi, one of five defendants accused of involvement in the September 2001 attacks in New York, is “arbitrary, breaches international human rights law and has no legal basis”. In a written statement by five independent experts, his detention was called “discriminatory” and the legal process he and his four co-defendants are subject to before the military commission system was slammed for not granting the defendants the same facilities to prepare their case as the prosecution, denying them a fair trial on the basis of nationality and religion. The experts stated that his detention “contravened at least 13 articles of the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights”. The Working Group further stated that “systematic imprisonment in violation of the rules of international law may constitute crimes against humanity”.

The reason that led three civilians lawyers to leave the USS Cole bombing case at Guantánamo in October last year, throwing the military commission system into further disarray, was disclosed in a 15-page prosecution file to the court obtained by the Miami Herald newspaper in early March, which stated that the lawyers discovered “a microphone in their special client meeting room and were denied the opportunity to either talk about or investigate it”. The court filing to the US Court of Military Commissions Review was signed by the chief prosecutor, with the prosecution claiming that the microphone had been placed there previously but was not in use. The case is aimed at getting a review panel to order the resumption of the case and was brought by the defendant Abd Al-Nashiri’s sole remaining defence lawyer at the end of last month. The case was adjourned in February when the judge asked for a higher court “to clarify his authority as a judge in the Guantánamo war court.” The resignation of the lawyers left Yemeni Abd Al-Nashiri without a capital defender in a case where he faces the death penalty for his alleged involvement in the death of 17 US soldiers in a suicide bomb attack in 2000 off the Gulf of Aden. However, lawyers and NGOs have questioned that if the issue was simply an error, then why has it been kept as a national security secret for months, and has prompted them to ask what else is being kept secret. The resigning lawyers were not allowed to reveal why they had resigned, and they claim that there is more to the issue than has been revealed.
Two of the defence lawyers have stated that several important details were missing from the account given in the court filing. They said that there was no sign that the microphone was no longer connected and contended that the government has never previously provided that explanation in the five months since they resigned. One of the lawyer, death penalty-specialist Richard Kammen stated, “This was the first we heard the claim, and that’s part of the reason we don’t believe it’s true”. He also stated that the defence team was already suspicious that its communication with its client was being monitored following a previous incident, which is also classified. At one stage, the judge dismissed the lawyers’ concerns about monitoring and snooping into their communications as “fake news”.

In the case involving five men accused of involvement in the 2001 attacks in New York, the judge in the case said that he would “order Secretary of Defense Jim Mattis to explain in writing why he suddenly fired the top official overseeing the war court”. The reasons for the 5 February dismissal of Harvey Rishikof, the Convening Authority for Military Commissions, and his legal advisor Gary Brown were not disclosed. The judge stated that “We simply need to know why they were terminated”. There is concern that Rishikof was fired for attempting to negotiate a deal for the five defendants.
http://www.miamiherald.com/news/nation-world/world/americas/guantanamo/article202166964.html

The Pentagon is planning to demolish Camp X-Ray, the long emptied notorious camp from which images of prisoners kneeling and behind fences in orange jumpsuits emerged in the early days of Guantánamo. Controversy has arisen over this move with some claiming it should remain open as a testimony to this sinister chapter of US history. The Justice Department, however, claimed in a letter to Guantánamo lawyers that “the FBI has created an interactive, simulated three-dimensional, digital virtual tour of Camp X-Ray that shows all areas of the camp where detainees were held, interrogated, or otherwise present."
The prison opened on 11 January 2002 with the arrival of the first 20 prisoners and was declared closed in late April 2002, however since then several prisoners have since reported being abused there after that date. One prisoner, Saudi Mohammed Al-Qahtani, who could not be prosecuted because of the torture he was subjected to said “he was tortured at Camp X-Ray with sleep deprivation, growling dogs, sexual abuse, forced nudity, harsh shackling and beatings”.
Saudi prisoner Ahmed Al-Darbi who pleaded guilty to war crimes in a secret plea deal following years of torture, and more recently provided recorded evidence in two cases against other prisoners, was due to be returned to Saudi Arabia by 20 February under the terms of the plea deal, however he remains at Guantánamo to date. In a letter, he hit out at the Saudi government for delaying his release, claiming that it has never done anything to help him and did not even provide him with a lawyer. He stated, “And now my own government is an obstacle to my repatriation. What kind of country abandons its citizens in the custody of another government for 16 years? My country won’t take a step that was agreed on four years ago so that I can finally go home. It’s been my daily dream for four years to see my wife and children”. According to his lawyer, Al-Darbi submitted his transfer request shortly after he was sentenced in August 2017 and the terms for his repatriation had been negotiated after he pleaded guilty in 2014.
Following a visit to Washington by Saudi Crown Prince Mohammed Bin Salman, the Pentagon announced that the repatriation process was on track, yet he remains at Guantánamo.

In 2014, Al-Darbi, following years of physical, sexual and psychological torture at Guantánamo and elsewhere pleaded guilty to a small role in a 2002 attack against a French-flagged oil tanker of the coast of Yemen. He agreed to cooperate with the US authorities on the basis he would be repatriated after 4 years. In 2017, he was sentenced to 13 years in jail, the remainder of which he is due to serve in Saudi Arabia.

Lawyers for Yemeni prisoner Moath Al-Alwi were at a federal appeals court on 20 March to deal with the issue of the indefinite detention of prisoners at Guantánamo Bay, more than 15 years after the war in Afghanistan began. Al-Alwi previously posed the question to the courts under the Obama administration where the judge responded that the question of when the war ends, or has ended, is at the discretion of the president; in 2014, Obama had declared the end of hostilities in Afghanistan, although the warfare continued. With Trump’s stated plans to keep Guantánamo open and possibly expand it, the case has new importance.
The arguments in the case hinged on whether the conflict in Afghanistan now is still the same one Al-Alwi was captured in over 16 years ago and whether the US government can still hold him legally.
The arguments in the case can be read and listened to here: https://lawfareblog.com/summary-courtroom-al-alwi-v-trump-oral-argument

The Ghanaian Parliament has ratified the signing of a Memorandum of Understanding between the Ghanaian and US government on defence cooperation which will allow the US military to open a military base in the country and operate on a tax-free basis. The Ghanaian government claims the deal is beneficial for the country and has denied that it is in any way linked to the agreement made with the US to accept two former Guantánamo prisoners, although it is not unknown for the US to offer trade deals and funds to poorer countries that agree to host Guantánamo prisoners who have no safe country to return to. In January, the Ghanaian government granted the two Yemeni prisoners it accepted in 2016 refugee status.

LGC at the March Against Racism, 17 March
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Extraordinary Rendition
In a case that will have serious repercussions for the prosecution of European states for the use of torture, and possibly their involvement in extraordinary rendition, in a review of the key 1978 case UK v Ireland, in which the European Court of Human Rights deemed detention practices, such as hooding, stress positions, sleep deprivation, etc. carried out by the British military against Irish republicans in Northern Ireland were inhuman and degrading treatment but not torture, the Court once again upheld this decision. It decided that new evidence presented by the Irish government was not tantamount to torture. These torture techniques have since been used by the US and British armies in Iraq, Afghanistan and elsewhere. They were later banned in the UK. The decision was a blow for survivors, many of whom continue to suffer as a result of the treatment they received when detained without trial by the British army in the 1960s and 1970s.

Confirmation of the nomination of Gina Haspel as head of the CIA has raised a lot of controversy, given her past involvement in running secret CIA prisons, in particular the first black site in Thailand, and thus she oversaw the use of torture at such sites. As much about the extraordinary rendition programme remains obscure, the extent of her involvement is unknown. An arrest warrant was put out for her by a German NGO due to her involvement in war crimes and crimes against humanity and she is thus unable to travel to the EU. Human rights NGOs have asked for her to be prosecuted instead and politicians in the US have asked for full disclosure of her role.

LGC Activities:
The LGC held its first monthly Shut Guantánamo! demos outside the new Nine Elms US Embassy in March. It was well attended in spite of the features of the new embassy that are intended to deter protest. Our second protest there will be in solidarity with the Iraqi people 15 years after the war started there with the US invasion, backed by its allies, including the UK. Please join us on Thursday 5 April 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/157022028258385/ All are welcome to join us.

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