LGC Newsletter – November 2023

 Guantánamo Bay

Two weeks of pre-trial hearings were held in the case of the four (previously 5) prisoners accused of involvement in attacks on New York in September 2001, although they were marred by weather conditions and attendees having Covid-19. Looking at the issue of how CIA torture contaminated later FBI interrogations, an Iraqi-American linguist for the FBI testified how he had translated and identified the suspects through coded transcripts he had worked on that were taken secretly during the defendants’ early days (they arrived at Guantánamo after years of illegal detention in secret CIA torture prisons in 2006) at Guantánamo and their discussions with other prisoners. The information related to this secret spying on prisoners was declassified and prosecutors are seeking to use it as evidence if the case goes to trial. “The move comes as prosecutors have considered new ways to counter claims by defense lawyers that torture by the C.I.A. contaminated subsequent F.B.I. interrogations of Mr. [Khalid Sheikh] Mohammed and his accused accomplices to produce confessions the government considers its most important trial evidence. It also shed light on an eavesdropping operation whose existence has until now never been formally acknowledged.” A lawyer for one of the defendants, Ammar al Baluchi, has said he will challenge the admissibility of these recordings, which were obtained not only secretly through conversations between prisoners held in isolation during their recreation time but more than 5 years after they were detained: “From 2006 to 2009, he said, the prisoners were held in solitary confinement and each one was allowed to speak only with one other prisoner, during an hour reprieve from their maximum-security cells. At the time, prisoners in the custody of a special unit known as Task Force Praetorian or Task Force Platinum were given recreation time in specifically designated pairs. They were confined to separate enclosures, meaning the prisoners could shout back and forth but not see one another.”.

No further hearings in any case are due to be held until 2024.

https://www.nytimes.com/2023/11/17/us/politics/guantanamo-9-11-case-tapes.html

https://www.lawdragon.com/news-features/2023-11-16-in-final-hearing-of-2023-fbi-witness-testifies-on-secret-recordings-made-of-9-11-defendants

LGC Newsletter – September 2023

 Guantánamo Bay

Pre-trial hearings continued in the case of prisoners accused of involvement in the September 2001 attacks in New York City. The number of defendants has fallen from five to four after a judge found that Saudi prisoner Ramzi bin al-Shibh is unfit for trial, “after a military medical panel found that sustained abuse had rendered him lastingly psychotic”. He remains in detention but only his co-defendants remain on trial.

https://www.aljazeera.com/news/2023/9/22/cia-abuse-rendered-9-11-defendant-unfit-for-trial-us-military

Ahead of the hearings resuming, in ongoing plea bargaining between the prosecutors and lawyers for the defendants, the Biden administration rejected a set of proposed conditions for the plea deal made by the men, which would include medical care for physical and mental trauma afflicted during their time in CIA custody and no solitary confinement. In March 2022, prosecutors offered a deal to avoid the death penalty in the case if the defendants pleaded guilty to their alleged roles in the attacks. However, Biden’s decision to reject these conditions could make such a deal harder to reach. The US administration has generally not engaged with the plea bargain proposed, leaving the matter to prosecutors and the defence to decide on. Some families of the deceased would like to see a trial for the five accused men rather than a plea bargain.

https://www.nytimes.com/2023/09/06/us/sept-11-trial-plea-biden-guantanamo.html

 

On 15 September, a group of UN experts issued a statement warning against the expulsion of former Russian prisoner Ravil Mingazov from the UAE, where he was resettled but not released in 2017, to Russia, where he would be at risk if repatriated against his will. The experts called for his immediate release: “We call on the Governments involved to observe their international obligations, honour the diplomatic assurances provided for resettlement, and take into account the substantiated risks to Mr. Mingazov’s physical and moral integrity, if repatriated against his will.”

“Mr. Mingazov is a victim of torture, inhuman and degrading treatment during and prior to his detention at Guantánamo Bay, Cuba and was arbitrarily detained by the United States for nearly 15 years. Given these past violations and his extended and indefinite arbitrary detention at an undisclosed location in the UAE, he remains profoundly vulnerable to further serious violations of his human rights.”

“The United States is obliged to continue to ensure Mr. Mingazov’s rights are being respected, including through his release in line with the terms of the diplomatic assurances, and reparation and remedy for serious violations of international law, including extraordinary rendition, torture, and other cruel, inhuman and degrading treatment and arbitrary detention experienced while in the custody of the US Government. As a victim of torture, Mr. Mingazov has rights that do not end with his transfer to another country.”

https://www.ohchr.org/en/press-releases/2023/09/uae-and-usa-un-experts-warn-against-refoulement-ex-guantanamo-detainee-and 

 

The case of two Malaysians and an Indonesian prisoner accused of involvement in the 2002 Bali bombing has been severed, with one Malaysian prisoner, Mohammed Farik Bin Amin, no longer being tried with the other two defendants in the case, which suggests that a plea deal may be pending and/or that Bin Amin may testify against his co-defendants. “Late in the Obama administration, the government nearly struck a plea deal with Mr. Bin Amin in which he would have been repatriated to Malaysia to serve out most of his sentence. But the deal collapsed amid concerns that he would not remain imprisoned for the full term, in part because Malaysia might not recognize the tribunals system as legitimate. A conviction of Mr. Bin Amin through a guilty plea would fit a strategy at the military commissions system of trying to use that approach to resolve charges against detainees formerly held at secret C.I.A. prisons known as black sites. Such cases are complicated by the fact that the agency tortured the prisoners before transferring them to military custody, and by the heavy presence of classified information.”

https://www.nytimes.com/2023/09/01/us/politics/guantanamo-bali-bombing.html

In addition, the Malaysian Home Minister reported having met the US special representative for Guantanamo affairs, Tina Kaidanow, during a trip to the US to discuss the release and repatriation of the two Malaysian prisoners, in whose case a 2025 trial start date has been proposed. He confirmed that the Malaysian government is seeking to have the two men returned to the country.

https://www.straitstimes.com/asia/se-asia/kl-pushing-to-get-two-malaysians-released-from-guantanamo-bay-home-minister

 

LGC Newsletter – August 2023

 Guantánamo Bay

The periodic review board (PRB), the mechanism set up to decide whether prisoners should continue to be detained indefinitely without charge or trial, decided to uphold the detention of Palestinian prisoner Abu Zubaydah, whose torture, including waterboarding, at the hands of the CIA has been litigated successfully in several countries. The US also decided as early as 2006 that he did not pose any threat to it, however having suffered some of the worst torture in the post-9/11 war on terror, the US is reluctant to release him, even though he has never been charged and faces no charges.

The last Afghan prisoner held at Guantánamo, Muhammad Rahim, held since 2007, had his review on 15 August. It is the first time that he had a lawyer present with him at such a hearing. https://www.afghanistan-analysts.org/en/reports/rights-freedom/the-last-afghan-in-guantanamo-pressure-mounts-on-us-to-deal-with-the-remnants-of-its-war-on-terror/

 

The family of former Russian prisoner Ravil Mingazov, who was transferred to the UAE by the Obama administration in 2017, where he has since remained imprisoned and with little communication with the outside world, delivered a letter to the UK Home Office calling for the UK to grant him asylum. His son and his mother are refugees in the UK.

https://www.middleeasteye.net/news/ex-guantanamo-inmate-detained-uae-pleads-uk-grant-asylum

 

In a ruling on 18 August, evidence obtained through the use of torture was excluded from the capital case of Yemeni prisoner Abd Al-Nashiri. A “military judge in Guantanamo Bay overseeing the pretrial capital prosecution of Abd al-Rahim al-Nashiri, the Saudi national accused of organizing the October 2000 bombing of the U.S.S. Cole, excluded Mr. al-Nishiri’s confessions as the product of torture. “Exclusion of such evidence is not without societal costs,” said the judge, Col. Lanny J. Acosta Jr., in a 50-page decision. “However, permitting the admission of evidence obtained by or derived from torture by the same government that seeks to prosecute and execute the accused may have even greater societal costs.” This decision raises serious questions about the admissibility of confessions made under similar circumstances by the five detainees accused of the 9/11 terror attacks and may affect the plea negotiations currently underway for these men.” With a new judge appointed to the case, Marine Lt. Col. Terrance Reese, the prosecution has decided to appeal the decision to the US Court of Military Commission Review. Excluding confessions forced through the use of torture, the US may not have enough real evidence for its case.

https://deathpenaltyinfo.org/news/confessions-of-guantanamo-detainee-in-death-penalty-case-excluded-as-product-of-torture

https://www.lawdragon.com/news-features/2023-08-18-judge-excludes-gitmo-defendants-confession-because-of-cia-torture

 

A military medical board has come to the conclusion that one of the five defendants accused of involvement in the September 2001 attacks in New York City, Ramzi Binalshibh, is not fit to face trial; he has a “mental illness that makes him incompetent to either face trial or plead guilty in the death penalty case”, according to a report filed with the judge hearing the case. “The question of Binalshibh’s sanity and capacity to help his lawyers defend him has shadowed the 9/11 conspiracy case since his first court appearance in 2008. Then, a military lawyer disclosed that her client was restrained with ankle shackles and that the prison had him medicated with psychotropic drugs. He has disrupted pretrial hearings over the years with outbursts, and in court and in filings complained that the CIA torments him with noises, vibrations and other techniques to deprive of him sleep.” The report was commissioned by the judge in April and it is now up to him to decide whether Binalshibh will be dismissed from the case. “According to their lawyers, at least four of the defendants have sleep disorders, brain injuries, gastrointestinal damage or other health problems they attribute to the agency’s brutal interrogation methods during their three to four years in CIA custody before their transfer to Guantánamo Bay in 2006”.

https://www.seattletimes.com/nation-world/man-accused-in-9-11-plot-is-not-fit-to-face-trial-board-says/

LGC Newsletter – March 2023

Guantánamo Bay

The US repatriated Saudi prisoner, Ghassan Al Sharbi, 48, after 21 years of detention at Guantánamo without charge or trial. He was cleared for release by the periodic review board in February 2022; the review board also said that he “had unspecified “physical and mental health issues”.” “Al Sharbi was initially targeted because he had studied at an aeronautical university in Arizona and had attended flight school with two of the al-Qaeda hijackers involved in the 2001 attacks. He becomes at least the fourth Guantanamo detainee released and sent to another country so far this year.” There are currently 31 prisoners still held at Guantánamo, 17 of whom are eligible for transfer. Part of the conditions of Al Sharbi’s release is that he will remain under continuing surveillance.

https://www.aljazeera.com/news/2023/3/9/saudi-engineer-released-from-guantanamo-prison-camp-after-21-yrs

https://www.defense.gov/News/Releases/Release/Article/3323397/guantanamo-bay-detainee-transfer-announced/

 

It has been over a year since prosecutors began plea dealings with the five defendants accused in the September 11 2001 case, which could see them avoid the death penalty and trial in return for a guilty plea and life sentences. However, little progress has been made in the negotiations and the judge in the case, Colonel Matthew N. McCall, who has cancelled scheduled hearings since, has expressed his frustration over the lack of response from the Biden administration concerning its assessment of the proposals. “The judge wrote on March 8 that he was “disinclined to continue canceling commission hearings solely because of a lack of a decision as to these ‘policy principles.’” The case itself has made little overall progress since the charges were brought in 2012. “Terms of the proposed deal are secret, and some talks have continued since last March. Government employees with knowledge of the discussions but who are not authorized to discuss them say Biden administration lawyers are examining granular issues.”
https://www.nytimes.com/2023/03/28/us/politics/september-11-plea-deal-guantanamo.html

In January, seven UN human rights investigators protested to the US government about healthcare for Guantánamo prisoners, in particular Abd Al-Hadi Al-Iraqi, who has a degenerative spinal disease for which he has had multiple operations and is now disabled. As the US government did not reply, the UN Human Rights Council has released an 18-page report by the experts on the healthcare facilities for prisoners, focusing on Al-Iraqi. “The report cites descriptions of his alleged mistreatment, many of which have been contained in court filings and transcripts — notably one that occurred in September 2021, after Mr. Hadi told the medical staff of a weakening in his lower extremities. It says that, soon after he refused a nurse’s proposal to conduct a rectal exam, the senior doctor at the prison conducted a test, “directing guards to hold him upright by his shoulders and then directing them to release him to see whether he could stand.” He “collapsed immediately as he did not have the strength to hold his own body upright,” the report says.” The report was submitted before the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism Fionnuala Ni Aolain carried out a fast-finding mission to Guantánamo earlier this year and was not given access to Al-Iraqi. “Mr. Hadi is among the sickest of the 31 detainees at Guantánamo Bay, and the investigators relied on medical records and testimony in court proceedings that have been largely focused on his ability to be brought before the court since his health crisis began in 2017. He pleaded guilty to war crimes last year in an agreement that would allow him to be transferred after sentencing to another country better equipped to treat him, potentially in a long-term health care facility. So far, no country has agreed to receive him. The report said there were “systematic shortcomings in medical expertise, equipment, treatment and accommodations at the Guantánamo Bay detention facility and naval station,” which sends service members who have complex health conditions to the United States for treatment. Congress has forbidden the same for the prisoners.”

“When he arrived at the prison, he could walk unassisted. Mr. Hadi now relies on a wheelchair and a walker inside the prison, and a padded geriatric chair for support in court. Guards also keep a hospital bed inside the courtroom where he has slept when heavy painkillers caused him to nod off.”

https://www.nytimes.com/2023/03/26/us/politics/un-guantanamo-bay-health-care.html  

Former British resident Jamal Kiyemba, who was released to Uganda from Guantánamo in 2006, has been charged with terrorism offences in Uganda. Although he has previously been arrested in the country, he has never faced trial.

https://www.independent.co.ug/adf-former-guantanamo-bay-prisoner-tonny-kiyemba-charged-with-terrorism/

LGC Newsletter – January 2023

 Guantánamo Bay

At least ten of the remaining 35 Guantánamo prisoners are reported to have contract Covid-19 this month. Given the existing medical facilities and the ageing prisoner population, the outbreak is of concern, however the US military has no plans to draft in or provide any further facilities. Scheduled legal meetings have been cancelled for at least one week.

https://www.middleeasteye.net/news/guantanamo-covid-19-cases-rise-one-third-detainee-population-report-says

 

In mid-January, an appeal was heard in the case of former Algerian prisoner Saber Lahmar in France where he was convicted in 2022 and sentenced to ten years in prison for reportedly having incited individuals to go and fight in Syria and Iraq. His lawyers argued that he does not have the influence on Islamists the court claimed he does.

https://www.cnews.fr/france/2023-01-18/propagande-jihadiste-en-gironde-le-proces-en-appel-de-lex-detenu-de-guantanamo

 

The lawyer of Ammar Al-Baluchi, one of the defendants in the ongoing 9/11 capital case, has reported that he has been informed by a doctor at Guantánamo that he has a tumour on his spine. According to a report filed, based on MRIs and other diagnostic tests, although currently benign, it will "eventually affect motor or sensory nerves as it grows". “Brain scans also found that the Guantanamo detainee's psychological functioning had "seriously diminished" as a result of the torture, leaving him with a host of issues including traumatic brain injury, anxiety, depression, and post-traumatic stress disorder.”

https://www.middleeasteye.net/news/guantanamo-tumour-discovered-detainee-ammar-al-baluchis-spine-court-filings-say