LGC Newsletter – December 2019

Guantánamo Bay

Pre-trial hearings resumed in the case of Abd Al Nashiri - accused of involvement in attacks in 2000 on a US naval vessel in the Gulf of Aden - for the first time in almost two years, and with a new judge, after the case was paused in early 2018 following a number of technical and procedural issues and other issues related to the judge in the case which led to many of the decisions and motions he made being thrown out. During the hearing, prosecutors argued that the US government “should be allowed to continue withholding underlying source documents about CIA torture from defense attorneys representing the alleged mastermind of the USS Cole bombing, even though a judge ruled that the government process of summarizing those documents “produced deletions that could fairly be characterized as self-serving and calculated to avoid embarrassment.”” Full access for Nashiri’s lawyers to CIA records about his interrogation are a major issue in the case. His defence lawyers have argued that summaries of classified government documents provided to the defence differ “significantly” from CIA cables the National Security Archive at George Washington University obtained earlier this year. Prior to the hearing, the new judge agreed in part with the defence lawyers who then argued that a new procedure should be ordered for the handover of documents to the defence.

https://theintercept.com/2019/12/04/guantanamo-uss-cole-cia-torture/

On 11 December, the US Court of Appeals for the DC Circuit heard oral arguments in the appeal case of Abdul Razak Ali v. Trump, on whether the fact that the detention facility has a periodic review system to clear prisoners for release exempts it from the due process clause in the US constitution, thus rendering ongoing detention for almost 18 years a violation of due process rights. Algerian Abdul Razak Ali has been held at Guantánamo without charge or trial for over 17 years. Currently, many prisoners are refusing to cooperate with the periodic review board as there appear to be few prospects for release.

https://www.justsecurity.org/67702/d-c-circuit-considers-limits-on-guantanamo-detention/

The Paris Court of Appeal ruled on 19 December to uphold the decision by investigating judges to dismiss a case brought by two French former Guantánamo prisoners, Nizar Sassi and Mourad Benchellali, to prosecute US officials for the torture they faced during their detention in Afghanistan and at Guantánamo by the US up to 2005. Their lawyer has stated that the case will be referred to the French Supreme Court. The two men accuse the US of “arbitrary detention”, “acts of torture” that include deafeningly loud music, flashing lights, sleep deprivation and violent interrogations, among others.

https://www.rtl.fr/actu/international/cuba-la-justice-confirme-le-non-lieu-dans-l-affaire-des-tortures-a-guantanamo-7799751988

The National Defense Authorization Act (NDAA) 2020, the US annual defence spending law, was signed into effect on 20 December and will keep Guantánamo open for at least another year, up to 31 December 2020. It bars the use of funds for the closure of Guantánamo, including to build alternative detention facilities in the US mainland, and prevents the transfer of prisoners to the US mainland for prosecution or medical care.

https://www.military.com/daily-news/2019/12/26/new-law-will-keep-guantanamo-bay-detention-facility-open-least-another-year.html

Ahead of the resumption of pre-trial hearings in the case of five men accused of involvement in attacks on New York City in 2001 for two weeks in January 2020, the judge has ordered the prosecution to find a way “for defense lawyers to challenge in open court an opinion offered by the first commander of Camp 7, a classified prison — that the United States military ran the facility once Mr. Mohammed and the others were transferred to Guantánamo in 2006 from years in C.I.A. black sites” and that it was not run by the CIA. The issue came up in testimony provided at the previous 3-week hearing in November. The judge has said that he will otherwise exclude this opinion. The next hearing is expected to hear evidence from the two CIA contractor psychologists - James E. Mitchell and John Bruce Jessen - who are the architects of the CIA’s torture programme, although they have yet to face trial for crimes against humanity. “The testimony by the psychologists as well as the former prison commander is to help the judge decide whether the defendants voluntarily described their alleged roles in the attacks when they were questioned by F.B.I. agents in early 2007 at Guantánamo, months after their transfer from years in C.I.A. custody. Defense lawyers argue that any confessions the men made were tainted by torture, and they seek to call dozens more witnesses in the pretrial phase.”

https://www.nytimes.com/2019/12/26/us/politics/gitmo-911trial-ruling.html

Extraordinary rendition:

In early December, the International Criminal Court in The Hague heard an appeal against a decision by the Office of the Prosecutor Fatou Bensouda not to investigate war crimes in Afghanistan over a short time period in the early years of the war, including the CIA’s war crimes and crimes against humanity, such as illegal detention and torture at secret detention facilities it ran in the country. As well as cases brought by Afghan civilians, lawyers have brought cases by current Guantánamo prisoners such as Abd Al Nashiri.

https://www.aljazeera.com/news/2019/12/afghans-demand-justice-attempt-probe-war-crimes-icc-191204064625131.html

https://www.icc-cpi.int/CourtRecords/CR2019_07304.PDF

LGC Activities:

There was no monthly Shut Guantánamo demo in December as we joined the Guantanamo Justice Campaign at the “No to Trump, No to NATO” demo in Central London on 3 December.

There will be NO monthly demo on Thursday 2 January 2020 either as we will join the Guantanamo Justice Campaign in their event to mark 18 years of Guantánamo on 11 January 2020. Details TBC.

LGC Newsletter – November 2019

LGC Newsletter – November 2019

Guantánamo Bay

Pre-trial hearings continued in the case of five men accused of involvement in attacks on New York City in September 2001. In the final hearing for 2019, FBI agents continued to give oral evidence of how the agency sent questions to the CIA “while it held the five defendants at overseas black sites in the years before they arrived at Guantanamo Bay in 2006. Former FBI Special Agent Adam Drucker recalled procedural details of sending questions to the CIA and later receiving intelligence generated at the black sites about the 9/11 attacks and other possible threats. In two days of public testimony, Drucker portrayed the system as obvious and necessary because the CIA did not give him and other Sept. 11 case agents direct access to the detainees at the black sites.” Drucker’s testimony provided information on the bureaucratic machinery behind the process and the vast paper trail involved. This witness was not personally involved in interrogations but witnessed them. “First Camp 7 Commander” who was the first commander at the Guantánamo camp “reserved for the “high-value detainees” previously held by the CIA” also gave evidence at the hearing. He claimed that the prisoners volunteered to attend sessions with the FBI, which is what the prosecution alleges. He told the hearing that he did not have full control over all decisions and some members of his internal guard force at Camp 7 were not military even though they wore uniforms. The final witness at this part of the hearing was FBI Supervisory Special Agent Michael Butsch, who gave testimony on “his coordination with the CIA on interrogations that took place prior to January 2007”; “He also testified to being present at overseas interrogations of Sept. 11 defendant Ramzi bin al Shibh in 2002, disclosing a new level of coordination between the agencies.” However, much of his testimony was classified and the defence team could only put specific questions to him; for example, he could not name the site he was at in 2002.

While the prosecution contends that the defendants opted to attend interrogations with the FBI at Guantánamo voluntarily, the defence is seeking to have any evidence they gave to them disqualified due to CIA interference as well as the use of intelligence obtained through torture at CIA black sites.

http://www.lawdragon.com/2019/11/02/fbi-involvement-in-cia-black-site-interrogations-confirmed-by-third-witness/

http://www.lawdragon.com/2019/11/09/fbi-witness-in-sept-11-case-was-present-at-overseas-interrogations-of-defendant-in-2002/

A US federal appeals court has suspended all military commission proceedings in the case of the defendant known as Abdul Hadi Al-Iraqi while the court reviews a conflict of interest challenge made in his case.

Hearings will resume at the military commission on 3 December in the capital case of Abd Al-Nashiri, accused of masterminding an attack on the USS Cole in the Gulf of Aden in 2000. Hearings in his case were suspended in February 2018 and will resume for the first time since then with a new judge. Ahead of the hearing, the new judge, Colonel Lanny J. Acosta Jr, has ruled that prosecutors in his case misrepresented evidence in his case, “complicating efforts to bring the suspect to trial at Guantánamo Bay and raising new questions about how the military commission system is dealing with the legacy of the C.I.A.’s secret prisons.” In his ruling, the judge said “that he reviewed a sample of evidence provided to defense lawyers and found “deletions that could fairly be characterized as self-serving and calculated to avoid embarrassment,” and “indicative of a minimalist view” of evidence defense lawyers were entitled to receive.” He also declined a request from prosecutors to reinstate 30,000 pages of court filings a federal court set aside in 2018 after it found the previous judge had a conflict on interest in his handling of the case as “he was secretly negotiating with the Justice Department for an immigration court judge job.”.

The judge has also ordered “prosecutors in the Cole case to provide defense lawyers with information “regarding intrusions into attorney-client communications,” a decision that could further delay the timetable to a trial.

“In the summer of 2018, Mr. Nashiri’s lawyers discovered an eavesdropping system in their client meeting room at the prison and were denied a request to investigate who, if anyone, was listening in on confidential conversations. The previous judge, Colonel Spath, refused to order release of that information or to let defense lawyers discuss it in public, prompting a walkout in October 2018 by Mr. Nashiri’s entire defense team.

“These allegations have already had a chilling effect, contributed to lengthy delays, and led to the withdrawal of three defense counsel,” Colonel Acosta wrote in that ruling. “The first step to ameliorating the issue is discovery.””

https://pulitzercenter.org/reporting/judge-rules-prosecutors-misrepresented-evidence-cia-sites

 

The US government is claiming, in new legal filings, that it would be inappropriate for Omar Khadr’s appeal against his 2010 military commission conviction to be heard. Khadr has served his sentence in Canada and although he filed his appeal many years ago, it was delayed while other appeals were heard but was not resumed once they were decided. Other successful appeals have shown that the “offences to which he pleaded guilty were not war crimes when he allegedly committed them.” In April, his US lawyers asked the US federal court of appeal to order the “the military reviewing court to hear his appeal.” In August, the court order the US government to respond.

https://www.ctvnews.ca/canada/don-t-force-military-court-to-hear-omar-khadr-appeal-u-s-government-argues-1.4674587

Later in November, the relevant court , theUnited States Court of Military Commission Review issued an order denying the “motion to lift a stay in proceedings in Khadr's appeal”, which could further delay his appeal by years. Nonetheless, the federal appeals court has yet to make its judgment.

https://www.cbc.ca/news/canada/edmonton/omar-khadr-appeal-delayed-in-american-military-court-1.5364062 

LGC Activities:

There is no monthly Shut Guantánamo demo in December as we will be joining the Guantanamo Justice Campaign at the “No to Trump, No to NATO” demo in Central London on 3 December. Please join us there: http://www.stopwar.org.uk/index.php/events/national-events/3277-dec-2019-london-no-to-trump-no-to-nato-london-demonstration

 

LGC Newsletter – October 2019

Guantánamo Bay

Following the longest pre-trial hearing thus far at Guantánamo in September in the case of five men accused of involvement in attacks on New York in September 2001:

https://www.lawfareblog.com/federal-judge-dismisses-military-commissions-defendants-8th-amendment-claim

the hearing resumed on 28 October for a further two weeks, also to hear evidence from FBI and other witnesses involved in the interrogations of the defendants and to ascertain whether the FBI’s role in interrogations of the men after they arrived at Guantánamo – and questions they put to the CIA when the men were held at secret CIA torture facilities – is tainted by CIA torture and their evidence thus potentially inadmissible.

 

A federal judge, Emmet G Sullivan of the US District Court for the District of Columbia has dismissed a claim by Abdul Hadi al Iraqi, currently facing non-capital charges at Guantánamo, that he has not received satisfactory medical treatment at Guantánamo as part of a case to have the charges against him dropped; the judge consequently decided that he would consider the rest of his claims (a further three) after his military commission trial is complete. Over the past few years he has had a number of operations on his back for conditions he suffered from prior to his detention. Nonetheless he has continued to face a number of difficulties, some of which have prevented him from attending hearings and leading to delays in his case.

https://www.lawfareblog.com/federal-judge-dismisses-military-commissions-defendants-8th-amendment-claim

Extraordinary Rendition:

Ahead of Turkey’s military invasion of northern Syria, the US seized two British ISIS prisoners from its former Kurdish allies, the SDF, Alexanda Kotey and El Shafee Elsheikh, members of the notorious “Beatles” quartet, in an apparent extraordinary rendition. The US was planning to seize up to 40 prisoners but the Kurds refused to allow any of the others to leave. The legality of their detention by the Kurds, and thus the SDF’s ability to put any of its alleged ISIS prisoners on trial, is questionable. The two men are reported to have been moved to a US military base in Iraq and may be moved to the US for trial, where they may face the death penalty. This is in spite of an ongoing appeal brought by the mother of one of the two men at the UK Supreme Court to prevent them being put on trial in the US and to be tried in the UK instead.

https://www.theguardian.com/world/2019/oct/14/us-british-isis-prisoners-syria?fbclid=IwAR3y8PgkHdbyeTOntq3x4QRyJc9QbkdQf5FzcUX95ACLKR10Iap_TA-TTJI

MPs Dan Jarvis (Labour) and David Davis (Conservative) are joining NGO Reprieve in taking legal action to order the government to hold a judge-led inquiry into "the truth of the UK's role in post 9/11 abuses". The government announced in parliament in July that it will not be seeking such an inquiry in response to two 2018 reports by the parliamentary Intelligence and Security Committee (ISC), even though this is necessary under the UK’s European and international legal obligations.

https://www.scotsman.com/news/crime/mps-taking-uk-government-to-court-over-torture-complicity-1-5021408?fbclid=IwAR3Jg7PjLOQTSR-tSHip3ygvx23MD7vsfcu0LW4sPIMMriBLl8UxSiVdAa4

LGC Activities:

The November Shut Guantánamo! demo will be on 7^th November at 12-2pm outside the US Embassy, Nine Elms Lane, SW11 (nearest underground: Vauxhall): https://www.facebook.com/events/3059213874093495/

 

LGC Newsletter – September 2019

Guantánamo Bay

The 38^th pre-trial hearing of five men accused of involvement in attacks on New York in September 2001 dominated the month of September at Guantánamo as the first ever three-week hearing started on 9 September, ending on Friday 27^th, to discuss a defence motion to suppress testimonies from FBI witnesses as well as what can and cannot be asked of them. Prior to the start of this hearing, the prosecution issued a document revealing facts that had previously been classified. These revealed that the FBI had access to some of the defendants when they were held at secret CIA prisons prior to being brought to Guantánamo in 2006. According to one of the defence lawyers, James Connell, who filed the motion, the information shows that “the FBI sent well over 1,000 questions to the CIA for the agency to ask detainees, including [Khalid Sheikh] Mohammed, who was subjected to waterboarding 183 times.”

Other information revealed by the new information “included confirmation that detainees Hawsawi, bin al-Shibh, and Abd al-Rahim al-Nashiri were held and questioned at a specific black site in Guantánamo called Echo 2 between late 2003 and early 2004. That is the same location where they were questioned after being returned to Guantánamo in September 2006 and where detainee meetings with defense attorneys are still held.”

Previously, the FBI had always maintained that it was separate to the CIA’s extraordinary rendition programme. While the US “government claims that the defendants’ incriminating statements at Guantanamo were voluntary and thus should be admissible in court” as they were made using conventional interview techniques, Connell stated that the “new disclosures on CIA-FBI coordination significantly strengthened his position that the statements were, in fact, obtained by torture as part of one large interrogation program spanning the black sites and Guantanamo Bay.”

https://theintercept.com/2019/09/11/fbi-cia-black-site-guantanamo/

http://www.lawdragon.com/2019/09/10/sept-11-case-set-for-pivotal-suppression-hearing-as-government-declassifies-details-of-fbis-role-in-cia-black-sites/

As part of the hearing, the testimony of FBI agents who had interviewed the defendants was heard and the question of “whether the FBI’s involvement in the CIA’s black-site interrogations should disallow statements provided later, in 2007, in interrogations by the FBI”, their suppression, was raised. One of the witnesses, FBI Special Agent James Fitzgerald, whose testimony took up most of the second week of the hearing, confirmed that “he and his colleagues sent hundreds of interrogation questions to the CIA while the defendants were at the black sites, and that the CIA had sent cables back with significant amounts of information that is now relevant to the case.”

Future pre-trial hearings are expected to deal with suppression motions to exclude statements made under duress of torture to the FBI by other defendants and hear the testimony of other witnesses.

http://www.lawdragon.com/2019/09/20/in-sept-11-case-one-set-of-fbi-interrogations-cast-in-two-different-lights/

In the third week, before the end of the suppression motion hearing, defence and prosecution lawyers argued over who was causing delays to the case and the feasibility of the schedule set by Judge Cohen in order to meet his date set for the trial to begin in January 2021.

http://www.lawdragon.com/2019/09/27/suppression-hearing-in-sept-11-case-ends-with-stormy-exchanges-over-trial-date/  

Following a petition by Omar Khadr in August to the US Court of Appeals for the District of Columbia Circuit for the military appeals court to hear his appeal of his 2012 conviction at Guantánamo, for which he has already served his entire sentence at Guantánamo and in Canada, the court has appointed three judges to hear the appeal, which was filed in 2013 but has not progressed for several years. According to his US lawyer, Sam Morison, the US Department of Defense has said it cannot hear his appeal as he is a “fugitive” having returned to Canada even though he was sent there by the US.

https://www.cbc.ca/news/canada/edmonton/u-s-military-court-appoints-panel-to-hear-omar-khadr-s-war-crimes-appeal-1.5297157

Extraordinary Rendition:

A report by the Inspector-General of Intelligence and Security in New Zealand has found that intelligence agencies in the country did not know that information they received from US agencies was obtained through torture even though they knew it came from individuals held at secret locations; thus the country’s intelligence agencies (SIS and GCSB) have been cleared of complicity and involvement in the CIA’s extraordinary rendition programme. New Zealand launched an inquiry into its role in the CIA programme in 2015 following the 2014 publication of the redacted US Senate report on the issue which revealed many details of the programme. Nonetheless, the report found that the agencies had “received many intelligence reports obtained from detainees who had been tortured.” The report looked at New Zealand’s role and possible connections to the rendition programme between 2001 and 2009 and whether there were adequate guidelines in place to deal with involvement and operations with foreign intelligence. In response the agencies have said they “will look at disposing of, or sealing, any intelligence reports received from the CIA as a result of torture”.

Although the findings absolve the agencies of involvement in the rendition programme, they still knew the US was arbitrarily and illegally holding detainees and yet still put questions to the CIA to ask them, thus condoning part of the illegal action of the US. One of the people to whom questions was put is current Guantánamo prisoner, Khalid Sheikh Mohammed, who was then being held at a secret CIA torture prison. The 2014 report revealed he had been waterboarded 183 and he is currently potentially facing the death penalty at Guantánamo on the basis of evidence obtained through the use of torture. In addition, New Zealand agencies could have contributed information that led to the tortured detainees being captured.

https://www.rnz.co.nz/news/political/398398/nz-spies-received-intelligence-from-tortured-detainees-watchdog 

https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12264027

In a deposition case as to whether two CIA contractor psychologists who helped to design the CIA extraordinary rendition programmes, James E. Mitchell and John “Bruce” Jessen, can be questioned as part of an investigation in Poland into the extraordinary rendition and torture of Guantánamo prisoner Abu Zubaydah, the Ninth U.S. Court of Appeals in San Francisco ruled 2-1 to allow the two men to answer limited questions by the investigation and for the first time in a court called the treatment Abu Zubaydah received “torture”. Abu Zubaydah was held in Poland from December 2002 to September 2003 at a secret CIA facility and tortured. He has successfully prosecuted the Polish state for this at the European Court of Human Rights, acknowledging he was tortured. Poland was only one of the countries he was shuttled between and tortured after his kidnap in 2002 and until he arrived at Guantánamo in 2006, by which time the CIA has not only conceded they had the wrong man but were willing to admit it. He nonetheless remains at Guantánamo, secluded from other prisoners, and has never faced charge or trial.

https://www.sandiegouniontribune.com/news/california/story/2019-09-19/court-calls-us-enhanced-interrogation-techniques-torture

https://www.pbs.org/newshour/nation/court-calls-u-s-enhanced-interrogation-techniques-torture

LGC Activities:

The October Shut Guantánamo! demo will be on 3^rd October at 12-2pm outside the US Embassy, Nine Elms Lane, SW11 (nearest underground: Vauxhall): https://www.facebook.com/events/3700619786630763/