LGC Newsletter – May 2024

 Guantánamo Bay

Former Algerian prisoner Saeed Bakhouch was sentenced to three years in prison on terrorism charges in Algeria on 13 May. He is the last prisoner to be released by the Biden administration in April 2023, having never been charged with any crime in his 21 years at Guantánamo. In spite of assurances from the US that he would not face further persecution following repatriation to Algeria, he was detained immediately and held in conditions that his lawyers described as “brutal” and has not been afforded a fair trial.

https://theintercept.com/2024/05/21/guantanamo-algeria-terrorism-prison-saeed-bakhouch/

 

The US Supreme Court has rejected an appeal by Canadian former child prisoner Omar Khadr against his military tribunal conviction, obtained through a plea bargain in order to be released back to Canada. “He had waived his right to appeal when he pleaded guilty in 2010 to charges that included murder. But his lawyers argued that a subsequent ruling by the federal appeals court in Washington DC called into question whether Khadr could have been charged with the crimes in the first place”. Khadr was released from prison in Canada in May 2015, where he was repatriated to serve the rest of his sentence, pending his appeal; “A Canadian judge ruled in 2019 that his war crimes sentence had expired.” Khadr is the only person in the world in over 80 years to be tried as an adult for offences allegedly committed as a minor. His trial was tainted by evidence obtained through the use of torture when he was a minor.

https://www.theguardian.com/us-news/article/2024/may/20/supreme-court-guantanamo-appeal-rejected

 

A 20 May report by NBC states that the Biden administration was close to transferring 11 prisoners from Guantánamo to Oman in October 2023, but changed its mind after the 7 October incidents in Israel and the Occupied Palestinian Territories: “The move was imminent and Congress had already been notified it would take place when it was called off.” This is according to 4 US officials who were aware of the planned schedule for this. No new date has been set for the transfer. The 11 men are reportedly either Yemeni or with ties to the country. It is also reported that the transfer deal is still being discussed and could happen in the future.

https://www.nbcnews.com/politics/national-security/biden-ready-move-11-detainees-guantanamo-october-paused-seven-months-rcna152985

This corroborates a story earlier this year on planned transfers that were stalled: “To be clear, these aren’t JTF’s decisions. It doesn’t take these steps until after the State Department has reached an agreement with a country to repatriate or resettle the men; the Defense Department has provided Congress with details of the transfer (which, by law, the administration must do 30 days in advance of most transfers); and the transfer is imminent.

In other words, it appears these men are continuing to languish at Guantanamo not for lack of a country willing to receive them, but for some other reason. As with most things Guantanamo, Occam’s razor suggests that reason is politics. If so, and absent some other compelling justification (the need to focus on the situation in the Middle East would not be a compelling one, given it is unrelated to Guantanamo transfers and there will always be a crisis to manage) the administration’s decision is as misguided as it is disheartening.”

https://www.justsecurity.org/91153/another-lost-year-on-guantanamo/

The Biden administration has transferred 10 prisoners in the past 3 years, bringing the prisoner population down to 30, the majority of whom are cleared for release. The further persecution in Algeria of Saeed Bakhouch since his transfer to Algeria last year, however, suggests that, decades on, the US government remains sloppy and careless in its handling of transfers, even though by its own admission, upon release, the prisoners are innocent and any claims of risks and threats posed to the US are non-specified and thus objectively non-existent.

LGC Newsletter – April 2024

Guantánamo Bay 

Pre-trial hearings took place in two cases over the past month: in early April, in the USS Cole case in which Yemeni prisoner Abd Al-Nashiri is accused of involvement in an attack that led to the death of 17 sailors off Yemen in 2000, the first hearing took place in the case since June last year with a new judge, who is understood to want to start the trial in the case in 2025. A five-week hearing is also currently underway in the case of four men accused of involvement in the September 2001 attacks in New York City. The hearing was paused for the Muslim holy month of Ramadan. Hearings continued where they left off previously, hearing prosecution witnesses from the FBI and other bodies, with some sessions held behind closed doors. On 26 April, “In an apparent historic first, the military judge presiding over the Sept. 11 military commission on Friday left his highly secure courtroom here to travel five miles to the former black site on Guantanamo Bay where the CIA secretly interrogated detainees between 2003-2004 and the FBI later attempted to get "clean" statements for use in a criminal case.

“The location – Camp Echo 2 – was commandeered following the black site detentions in an effort to sanitize coerced statements extracted on this same ground, or at black sites that defense attorneys say were eerily similar. The government claims the subsequent statements, given in January 2007 to the FBI, constitute clean recountings made without coercion and should be admissible at trial. Roughly four months before the statements the Bush administration had announced the transfer of the accused and other high-value detainees to Guantanamo Bay from CIA custody.

“The groundbreaking visit was led by the fourth judge to preside over pretrial hearings, Air Force Col. Matthew McCall. Earlier this week, he explained in an order that a “a site visit” to Echo 2 “would be beneficial for determining” whether he should suppress the contested statements to the FBI. The defense teams claim any disclosures to the FBI resulted from the CIA's prior torture and relentless conditioning of their clients. The prosecution claims the defendants gave their 2007 statements voluntarily.

“The site visit was “historic” as “the first time a judicial officer has visited a former CIA black site,” said James Connell, the lead lawyer for defendant Ammar al Baluchi. Echo 2 is a fulcrum on which the judge will decide if the 2007 statements given to the FBI were sufficiently attenuated from the preceding years of incommunicado detention by the CIA.””

https://www.lawdragon.com/news-features/2024-04-26-judge-on-9-11-case-visits-former-cia-black-site-on-guantanamo-bay

A new $US4 million second courtroom has also opened to allow two consecutive hearings to take place, although attendants of one were not allowed to switch over to the other in different sessions.

 

Extraordinary rendition

 

Lithuania has decided not to appeal a European Court of Human Rights ruling finding it complicit in the CIA’s extraordinary rendition programme with respect to current Guantánamo prisoner, Saudi Mustafa al-Hawsawi. The ruling thus became final on 16 April. “In late January, the ECtHR awarded 100,000 euros to Mustafa al-Hawsawi for his unlawful detention in the alleged secret facility, and another 30,000 euros to REDRESS, the non-governmental organisation that represented the Saudi national. The Strasbourg court found that al-Hawsawi’s detention in Lithuania had violated various articles of the European Convention on Human Rights, such as the prohibition of torture, the right to a fair trial, the right to life, liberty, and security.”

https://www.lrt.lt/en/news-in-english/19/2256614/lithuania-opts-not-to-contest-ecthr-ruling-on-cia-prison

 

Twenty years after US prisoner torture and abuse at the Iraqi Abu Ghraib prison was revealed, three former prisoners have had their day in a US court, in a long-running case against US military contractor CACI, Al-Shimari v. CACI. The victims were able to make statements and share their experiences, including post-release trauma and illness, with CACI claiming that the victims were not in the infamous torture pictures and cannot prove they were tortured by its staff, and that ultimately the US military is responsible, to wash its hands of liability. Two weeks after the hearing, the jury has still not delivered its verdict in the case.

https://apnews.com/article/abu-ghraib-trial-iraq-virginia-9e6eae5c7ea05fac90d8541efdd15562

LGC Newsletter – February 2024

 Guantánamo Bay

A month-long pre-trial hearing is currently underway in February /early March in the case of four men accused of involvement in the September 2001 attacks in New York City. With some of the witnesses heard in closed session, and the defendants not attending all sessions, the judge continued to consider pre-trial issues such as what evidence to include and exclude and evidence obtained through the use of torture. Witnesses on the stand included one of the architects of the CIA extraordinary rendition torture programme, psychologist Dr James Mitchell, who gave testimony about the torture techniques he and other CIA operatives used on the defendants to extract confessions, including waterboarding. He last gave testimony in January 2020 in the case. FBI special agents involved in interrogations with the four men were also called as witnesses to give testimony, as their defence is seeking to have some evidence from these interrogations suppressed due to the CIA and FBI working together on them and using information taken from torture-based confessions. The hearing will end in early March and resume with more witnesses in mid-April, after Ramadan.

https://www.lawdragon.com/news-features/2024-02-23-after-four-year-gap-former-cia-psychologist-retakes-the-stand-in-9-11-case

https://www.lawdragon.com/news-features/2024-02-17-tensions-escalate-in-911-suppression-hearings-over-security-interruptions

 

Two Afghan prisoners, Mullah Abdul Zahir Saber and Haji Abdul Karim, members of the Taliban in 2002, were released from Guantánamo to Oman in 2017, where they were held under house arrest and forbidden to travel. In mid-February, they returned to Afghanistan to a hero’s welcome following efforts to repatriate them by the Afghan government. One Afghan national remains at Guantánamo.

https://www.independent.co.uk/news/ap-afghans-oman-abdul-karim-guantanamo-bay-b2494387.html

 

LGC Newsletter – January 2024

Guantánamo Bay

Dennis Edney KC, Scottish-Canadian lawyer of former Guantánamo child prisoner Omar Khadr has died aged 77. He was Khadr’s lawyer for over a decade and played a huge role in getting his client released from Guantánamo Bay when the Canadian government dragged its feet over his repatriation after a military commission plea bargain was reached, and then in helping to secure his release from prison in Canada and improving prison conditions when Khadr was held in solitary confinement and was subject to abuse from other prisoners. After his release from Canadian jail in 2015 on bail, Edney and his wife Patricia welcomed Omar Khadr into their home where he stayed for several years as he rehabilitated back into society. Lawyer Nate Whitling, who worked with Edney on Khadr’s case said, “Dennis was a great lawyer and friend. In all my years in the legal profession, I've never met a lawyer more dedicated to his clients”. A criminal lawyer, he also worked on numerous pro bono cases. In 2014, the LGC hosted a speaking tour by Dennis Edney in the UK to raise awareness about Omar Khadr’s case.

https://www.cbc.ca/news/canada/edmonton/lawyer-dennis-edney-dead-at-77-1.7072899

 

In a 2-week hearing in January, two Malaysian prisoners held at Guantánamo since 2006, after being transferred there following several years of illegal detention and torture in secret CIA facilities around the world, entered a plea bargain and pleaded guilty to conspiracy in the 2002 Bali bombings that killed over 200 people. The two men, Mohammed Nazir Bin Lep, 47, and Mohammed Farik Bin Amin, 48, who will now not have to reveal “evidence” through torture-tainted confessions obtained from them, will instead give evidence against the alleged mastermind of the bombings, fellow torture victim, the Indonesian prisoner known as Hambali. They pleaded guilty to five of the nine charges brought against them; the other charges were dropped as part of the deal. Lawyers for Hambali are seeking to have torture-tainted evidence dropped in his separate case.

As part of the hearing, the men addressed the court which was attended by family members of the victims, who read out some of their own messages, and some of their own family members. The advised sentence of 23 years was accepted by the military jury and was later reduced to 5 years in view of the time already spent at Guantánamo (illegal CIA detention not included) of 17 years and the secret deal. The men are expected to be released to Malaysia after that but are not expected to be freed from detention, something that has not happened to any victim of the CIA’s extraordinary rendition torture programme.

https://www.aljazeera.com/news/2024/1/17/two-malaysians-in-guantanamo-plead-guilty-to-conspiring-in-bali-bombings

 

Extraordinary Rendition

Lithuania has been found guilty a second time by the European Court of Human Rights in Strasbourg of complicity in the CIA’s extraordinary rendition programme, this time in relation to Saudi prisoner Mustafa Al-Hawsawi, whose case has recently been severed from that of the other defendants in the 9/11 case due to the physical and mental impact his torture and detention have had on him. The court held that in his secret detention and torture in the CIA-run facility in Lithuania in 2005-2006 “that there had been violations of the prohibition of inhuman or degrading treatment or investigation because of Lithuania’s failure to effectively investigate Hawsawi’s allegations “and because of its complicity in the CIA secret detainee programme”.” The court also “held that there were violations to articles relating to the rights to a fair trial and life, as well as abolition of the death penalty, […] because Lithuania assisted Hawsawi’s “transfer from its territory in spite of a real risk that he could face a flagrant denial of justice and the death penalty.”” Lithuania was ordered to pay Al-Hawsawi €100,000 in compensation.

https://www.theguardian.com/law/2024/jan/16/echr-rules-lithuania-allowed-inhuman-treatment-of-alleged-911-suspect-by-cia

LGC Newsletter – December 2023

Guantánamo Bay

The UK Supreme Court has ruled that Guantánamo “forever prisoner” Abu Zubaydah can sue the British government “over allegations that British intelligence services asked the CIA to put questions to him while he was being tortured in “black sites”. The supreme court said MI5 and MI6 were subject to the law of England and Wales and not – as the government had attempted to argue – the six different countries where Abu Zubaydah was held.” Prior to his detention at Guantánamo in 2006, the Palestinian prisoner who was kidnapped by the US in Pakistan in 2002, was “rendered” to torture at secret CIA torture facilities in Thailand, Lithuania, Poland, Morocco, Guantánamo Bay (at a secret facility there) and Afghanistan. He has never been tried or charged. He has successfully sued Poland and Lithuania for their collusion with the CIA in his torture at the European Court of Human Rights. Abu Zubaydah’s lawyers claim that “the UK intelligence services committed the civil wrongs of misfeasance in public office, conspiracy to injure, trespass to the person, false imprisonment and negligence […. Abu Zubaydah] alleges that the UK intelligence services sent numerous questions to the CIA to be used in interrogations, without seeking any assurances that he would not be tortured or mistreated or taking steps to discourage or prevent such treatment. He claims that at the black sites he was waterboarded on 83 occasions and also subjected to extreme sleep deprivation, confinement inside boxes, beatings, death threats, starvation, denial of medical care and no access to sanitation.”

https://www.theguardian.com/law/2023/dec/20/guantanamo-prisoner-can-sue-uk-government-supreme-court-rules

https://www.supremecourt.uk/cases/uksc-2022-0083.html

 

The Periodic Review Board has denied the last Afghan prisoner, Muhammad Rahim, the chance to be cleared for release, claiming that he still poses a threat to the security of the USA; he has never been charged or tried at Guantánamo in over 17 years of detention there. He is one of three of the remaining 30 prisoners who remain in indefinite detention.

https://www.afghanistan-analysts.org/en/reports/rights-freedom/a-dreams-deferred-again-the-last-remaining-afghan-in-guantanamo-loses-his-latest-bid-for-freedom/

 

The National Defense Authorization Act 2023 has allocated an initial $60 million for the construction of a new and modern healthcare facility but has maintained restrictions on the transfer of Guantánamo prisoners to prison facilities in the US and bars funding for their transfer to the US or other countries. In signing the law into force, President Joe Biden criticised these provisions stating: “Section 1033 of the Act continues to bar the use of funds appropriated to the Department of Defense to transfer Guantánamo Bay detainees to the custody or effective control of certain foreign countries.  Section 1031 likewise would continue to prohibit the use of such funds to transfer Guantánamo Bay detainees into the United States.  It is the longstanding position of the executive branch that these provisions unduly impair the ability of the executive branch to determine when and where to prosecute Guantánamo Bay detainees and where to send them upon release.  In some circumstances, these provisions could make it difficult to comply with the final judgment of a court that has directed the release of a detainee on writ of habeas corpus, including by constraining the flexibility of the executive branch with respect to its engagement in delicate negotiations with foreign countries over the potential transfer of detainees. I urge the Congress to eliminate these restrictions as soon as possible.”

https://www.whitehouse.gov/briefing-room/statements-releases/2023/12/22/statement-from-president-joe-biden-on-h-r-2670-national-defense-authorization-act-for-fiscal-year-2024/