Guantánamo Bay
On 3 March, in a 6-3 decision, the United States Supreme Court ruled to prevent CIA contractors, psychologists James Elmer Mitchell and John Bruce Jessen, the architects of the extraordinary rendition programme, from being questioned as part of a criminal investigation in Poland into the unlawful detention and torture of Abu Zubaydah, a current “forever prisoner” at Guantánamo. “The court found that the government could assert what is called the “state-secrets privilege” to prevent the contractors from being questioned because it would jeopardise national security.” and that “The contractors’ testimony “would be tantamount to a disclosure from the CIA itself”.” Nonetheless, as one of the judges, Neil Gorsuch, pointed out in his dissenting opinion, “much of what the government claims to be a state secret is already widely known. “There comes a point where we should not be ignorant as judges of what we know to be true as citizens,” Gorsuch wrote. “Ending this suit may shield the government from some further modest measure of embarrassment. But respectfully, we should not pretend it will safeguard any secret,” Gorsuch added.”” Commenting on the ruling, Dror Ladin, from the American Civil Liberties Union (ACLU) stated, “Today a majority of the Supreme Court allowed the CIA to declare secret the widely-known location of its torture facility in Poland. US courts are the only place in the world where everyone must pretend not to know basic facts about the CIA’s torture program. It is long past time to stop letting the CIA hide its crimes behind absurd claims of secrecy and national security harm.”
https://www.aljazeera.com/news/2022/3/3/us-supreme-court-blocks-testimony-over-guantanamo-detainee
Saudi prisoner Mohammad Al-Qahtani is the second prisoner to be repatriated by the Biden administration. Currently, 38 prisoners remain at Guantánamo. Al-Qahtani, who suffers from mental health problems which have degenerated further through US torture and unlawful detention for over 20 years, was returned to Saudi Arabia to receive psychiatric treatment there. He had previously faced charges as a potential accomplice in the 9/11 attacks in New York, but this was dropped after it was established that his confession had been obtained through torture. One of his lawyers, Ramzi Kassem, stated, “After two decades without trial in U.S. custody, Mohammed will now receive the psychiatric care he has long needed in Saudi Arabia, with the support of his family. Keeping him at Guantanamo, where he was tortured, and then repeatedly attempted suicide, would have been a likely death sentence.”
A defence lawyer representing one of the defendants in the 9/11 case, Yemeni Walid Bin Attash, since 2011, Cheryl Bormann, resigned abruptly from the case after telling the court that her “performance and conduct” are being investigated by the Pentagon’s Military Commissions Defense Organization. The judge in the case, Colonel Matthew McCall, has since issued an order dismissing her and ordering the appointment of a replacement. While details have not been released concerning the investigation, Bormann has previously been forthright in her views on her client’s case, referring “to prosecutors as working for 'the government that wants to kill him.'” Finding a replacement could be a lengthy process and prosecutors have more recently asked the judge to reconsider his decision as her client, the defendant, has not publicly consented to this.
At the same time, while pre-trial hearings did not go ahead in the case this month, discussions are underway, but are suspended for the Muslim holy month of Ramadan which starts in early April, to reach a plea bargain which would see the defendants avoid the death penalty in return for a guilty plea. Over the past decade, pre-trial hearings in the case have been mired in issues related to the torture of the defendants in secret CIA detention; a plea bargain could avoid the need to consider this.
The first pre-trial hearing at the military tribunal this year was held on 28 March in the case of Nashwan al Tamir (Abd al-Hadi al-Iraqi) with a new judge, Lieutenant Colonel Mark F. Rosenow. The hearing consisted mainly of questions to the new judge by the prosecution and defence and other procedural matters. The next hearing in this case is scheduled to take place in June.
The Pentagon announced on 11 March that Majid Khan, whose confession was obtained through the use of torture and was convicted through a secret plea bargain that included giving evidence against other prisoners, had completed his prison sentence. He pleaded guilty in 2012 to “delivering $50,000 from Pakistan to a Qaeda affiliate. The money was used in the 2003 bombing of a Marriott hotel in Jakarta, Indonesia, that killed about a dozen people.” He was sentenced almost a decade later, when he was given a 26-year sentence in October 2021. Horrified by the nature of the torture that led to his confession, the military jurors urged the war court to show him clemency, which it did by reducing his sentence to 10 years; it thus ended on 1st March. However, the Pakistani national is unlikely to be released soon, as he must be transferred to a safe third country. He cannot return to Pakistan as “when he first pleaded guilty, he became a U.S. government witness, and his life could be in danger were he sent there.” His lawyer J. Wells Dixon from the Center for Constitutional Rights stated, “There is no basis left to continue to hold Majid Khan at Guantánamo. The United States must send him to a safe, third country where he can be reunited with his wife and his daughter, who he never met.”
https://www.nytimes.com/2022/03/11/us/politics/terrorist-gitmo-sentence-majid-khan.html
Extraordinary rendition
United Nations human rights expert Fionnuala Ní Aoláin, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, submitted a report to the Human Rights Council, in which she “called on States to ensure that the post 9/11 legacy of secret detention, rendition and torture is not forgotten and its ongoing consequences are tackled head on.” While expressing particular concern “about the normalization and expansion of secret detention practices in northeast Syria and Xinjiang, China.”, she “highlighted the experiences of those rendered to the detention site at Guantanamo Bay, Cuba – and stressed that 38 Muslim men continue to be held at this site in conditions which meet the legal threshold for torture, cruel, inhuman and degrading treatment under international law. “Not a single man who was rendered across borders, tortured, arbitrarily detained, separated from family has received an adequate remedy. Many who were returned home continue to live with long-term social and psychological trauma. No-one was held accountable for systematic practices of torture and rendition.””
https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=28288&LangID=E
From Matrix Chambers (UK): “The Court of Appeal has today allowed an appeal brought by Abu Zubaydah, a detainee at the US military prison in Guantanamo Bay, Cuba, in a claim for complicity in torture against the UK Government. The claimant alleges that from 2002-2006 he was arbitrarily detained at secret US “black site” prisons located in six different countries (“the Six Countries”), where he was subjected to extreme mistreatment and torture by the CIA. He contends that from at 2002 the UK security and intelligence services were aware that he was being arbitrarily detained, mistreated, and tortured, in CIA “black sites” but nonetheless sent questions to the US intelligence agencies to be used in their interrogations of him for the purpose of attempting to elicit information of interest to the UK intelligence services. The claimant claims that by acting in this way, the UK security and intelligence services committed the torts of misfeasance in public office, conspiracy to injure, trespass to the person, false imprisonment and negligence.
“In February 2021 the High Court ruled that the applicable law for these claims against the UK Government was the laws of the Six Countries, meaning that the question of whether the UK Government was liable to the claimant would be determined by reference to the laws of Thailand, Lithuania, Poland, the United States (or possibly Cuba), Afghanistan and Morocco. In a judgment handed down today, the Court of Appeal overturned that conclusion, finding that the High Court had made a number of “important errors of law” and ruling that the claimant’s claims are governed exclusively by English law.”
