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.
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.””
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.
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.
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
