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 – July 2023

Guantánamo Bay

 

Yemeni prisoner Al Hamza Al-Bahlul, 53, the only prisoner serving a life sentence at Guantánamo Bay, had an appeal turned down by a federal appeals court to have his life sentence “for conspiring to commit war crimes as a propaganda chief for Al Qaeda and an aide to Osama bin Laden” reconsidered by a new military jury. His case has already been appealed several times with earlier appeals striking “down two of the three crimes for which Ali Hamza al-Bahlul was convicted in 2008. His lawyer, Michel Paradis, had argued that a new sentencing jury should be assembled at the base to hear evidence and arguments on whether his remaining conspiracy conviction deserved a lesser sentence. Mr. Paradis also sought reconsideration of the sentence because, a year after Mr. Bahlul’s trial, Guantánamo’s military commission system was overhauled to explicitly prohibit the use of evidence “obtained by the use of torture or by cruel, inhuman, or degrading treatment. A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit said that the sentence should stand and that the prisoner’s lawyers brought up the question of torture too late in the appellate process”.

“Mr. Bahlul’s legal team is likely to seek full appellate court review before deciding whether to appeal to the Supreme Court. This is Mr. Bahlul’s sixth case before the civilian appeals court, including one in 2014 that overturned two other convictions on charges of providing material support for terrorism and solicitation of others to commit war crimes.” He is the only prisoner still at Guantánamo whose case was heard during George W. Bush’s administration.

“A United Nations human rights investigator who visited the prison this year mentioned Mr. Bahlul in a report that condemned conditions of the detention operation. As the only convict at the prison, he is kept “in isolation, raising serious concerns of solitary confinement in contravention of international law,” according to the report by Fionnuala Ni Aolain, who is serving as the U.N. special rapporteur on counterterrorism and human rights. Ms. Ni Aolain said a prison policy letting him socialize with other detainees four hours a day has been implemented inconsistently and arbitrarily.”

https://www.nytimes.com/2023/07/26/us/guantanamo-al-qaeda-recruiter.html

 

Pre-trial hearings set to be heard in July and August in three cases (Al-Nashiri (USS Cole bombing), the Bali bombing case and Nashwan Al-Tamer (Abdul Hadi Al-Iraqi)) have been cancelled. In the Bali bombing case, a new judge, Lieutenant Colonel Wesley Braun from the US Air Force, will hear the case when pre-trial hearings are resumed, scheduled now for October. In Nashwan Al-Tamer’s case, he was one of five prisoners who reported to have contracted Covid-19 in July. The US military said that the illness was not serious in any of the cases.

 

LGC Newsletter – June 2023

Guantánamo Bay

Ahead of the resumption of pre-trial hearings in the case of Yemeni prisoner Abd Al-Nashiri, in early June, the UN working group on arbitrary detention condemned the US and seven other countries “- Afghanistan, Lithuania, Morocco, Poland, Romania, Thailand, United Arab Emirates - which allegedly transferred or detained him between 2002-2006” for the torture and human rights violations he has suffered in detention: “The United Nations working group on arbitrary detention said he had been arbitrarily detained for more than 20 years and it voiced concern about his physical and mental well-being.”

https://www.reuters.com/world/un-body-condemns-us-others-treatment-guantanamo-inmate-2023-06-05/

During the pre-trial hearing, in a case which could see this CIA torture victim face the death penalty, the judge heard the last few witnesses on the issue of the admissibility of evidence from torture-tainted interrogations and the impact of years of torture on the statements he made admitting to terrorist acts. “The judge’s ruling is on track to be the first major decision at the war court about the admissibility of interrogations by federal agents who were brought to Guantánamo Bay to build a fresh case against former C.I.A. prisoners.” According to the final defence witness, former CIA officer Retired Colonel Steven M. Kleinman, “prolonged isolation, sleep deprivation and brutality like that experienced by the C.I.A. prisoners degrades memory and leads to false confessions. Such treatment impairs a prisoner’s “ability to answer reliably” even years later, he said, adding that a prisoner “may be willing but is no longer able to correctly recall events.””

https://www.nytimes.com/2023/06/17/us/politics/guantanamo-torture-cia-cole-prisoner.html

“The motion to suppress al Nashiri’s Guantanamo statements are among several critical motions pending before [Judge] Acosta, who intends to issues a series of rulings prior to his retirement later this summer. Al Nashiri’s team has asked Acosta to suppress the hearsay statements of Salim Hamdan elicited by federal agents in 2002, when Hamdan was a detainee at the Guantanamo Bay detention facility. (Hamdan was freed shortly after his transfer to Yemen in 2008. An appeals court later overturned his military commission conviction.) The team has also moved to suppress the statements that a current Guantanamo Bay detainee, Walid bin Attash, made to FBI and NCIS agents in his interrogations in early 2007. Bin Attash, who is charged in the separate military commission over the Sept. 11 attacks, is suspected of playing a role in the USS Cole bombing. Both Hamdan and bin Attash have given information that implicates al Nashiri. Defense lawyers are also challenging more than 100 hearsay statements made by Yemeni witnesses and possible suspects to federal agents in the months and years after the attack on the USS Cole.”

https://www.lawdragon.com/news-features/2023-06-16-cia-abuse-rendered-future-statements-unreliable-expert-testifies

 

On 26 June, International Day in Support of Victims of Torture, the UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Fionnuala Ní Aoláin, presented her report on her visit to Guantánamo Bay and other sites involved in the war on terror and meetings with victims and their families. She is the first UN Special Rapporteur to be given access to Guantánamo Bay since it opened over 21 years ago. In the report, she states that “The U.S. Government is under a continued obligation to ensure accountability, make full reparation for the injuries caused, and offer appropriate guarantees of non-repetition for violations committed post-9/11”. With respect to Guantánamo, she “concludes that the foregoing conditions constitute a violation of the right to available, adequate, and acceptable health care—as part of the State’s obligation to guarantee the rights to life, freedom from torture and ill- treatment, humane treatment of prisoners, and effective remedy—have resulted in the significant deterioration of the physical and mental health of detainees, compounding post-traumatic symptoms and other severe and persistent health consequences co-related to temporal continuities of healthcare provision at Guantánamo Bay. She finds that the cumulative effects of these structural deficiencies amount to, at minimum, cruel, inhuman, and degrading treatment under international law. Moreover, the U.S. Government’s failure to provide torture rehabilitation squarely contravenes its obligations under the Convention against Torture.” She also calls for prisoners to have better access to their families, equal access to lawyers and fair trial rights and urged the US government to apologise to the prisoners. The US government has issued a one-page response which is covered here: https://www.justsecurity.org/87093/takeaways-from-the-un-special-rapporteur-report-on-guantanamo/

The report: https://www.ohchr.org/en/special-procedures/sr-terrorism/us-and-guantanamo-detention-facility

 

LGC Newsletter – May 2023

Guantánamo Bay

“The US Court of Appeals for the District of Columbia Circuit ruled Tuesday [9 May] that former Guantánamo Bay detainee Omar Ahmed Khadr waived his right to appeal his war crime convictions under the Military Commissions Act. Circuit Judge Karen LeCraft Henderson authored the opinion of the court.

“The court ruled that Khadr waived his right to appeal his convictions in his pretrial agreement with the federal prosecutor on his case. In the agreement, Khadr agreed to plead guilty to all his charges and waive his appeal rights for a sentence not to exceed eight years. The court ruled Khadr “knowingly, intelligently and voluntarily” waived his right to appeal his conviction. Additionally, the court decided that Khadr “expressly waived the right to appeal his conviction, sentence and detention.” The court also noted the importance of allowing criminal defendants to waive their rights to appeal as a “bargaining chip to use in negotiating a plea agreement with the Government.””

A dissenting opinion was given by Judge Robert Wilkins who said that the court did not have the jurisdiction to review the plea agreement between the military commission and the Canadian former prisoner.

https://www.jurist.org/news/2023/05/us-appeals-court-rules-that-al-qaida-member-waived-right-to-appeal-war-crime-convictions/

 

In a new case before the secretive investigatory powers tribunal in the UK, lawyers for Abd Al Nashiri have argued that the UK secret services – MI5, MI6 and GCHQ – were involved in his rendition and torture by the CIA. “In papers submitted to the tribunal, al-Nashiri’s barrister, Hugh Southey KC, said: “The complainant’s case is that the UK agencies aided, abetted, encouraged, facilitated and/or conspired with the US authorities in his mistreatment.” […]The lawyers allege the UK’s involvement in al-Nashiri’s mistreatment probably included allowing Luton airport to be used to refuel a private jet used in his rendition from Thailand to Poland in December 2002.” The UK government argued that the court did not have the jurisdiction to hear the case.

https://www.theguardian.com/world/2023/may/28/guantanamo-detainee-accuses-uk-agencies-of-complicity-in-his-torture

 

The 10-year sentence for association with a terrorist organisation, involved in recruiting for ISIS, given to former Algerian prisoner Saber Lahmar in France, who was never charged or tried at Guantánamo, was upheld on appeal on 25 May. The sentence includes a 2/3 custodial sentence and a permanent ban from French territory. His lawyers have stated that the charges were based on hearsay and intend to appeal to the French Supreme Court.

https://www.7sur7.be/monde/peine-de-10-ans-de-prison-confirmee-en-appel-pour-un-ex-detenu-de-guantanamo~adf87186/

A new report by Prof Mark Denbeaux and his students at the Center for Policy and Research at Seton Hall University law school, “American Torturers: FBI and CIA Abuses at Dark Sites and Guantánamo,” includes new drawings by his client “forever” prisoner Abu Zubaydah of the torture he received. These images provide “the most comprehensive and detailed account yet seen of the brutal techniques to which he was subjected. Abu Zubaydah has created a series of 40 drawings that chronicle the torture he endured in a number of CIA dark sites between 2002 and 2006 and at Guantánamo Bay. In the absence of a full official accounting of the torture program, which the CIA and the FBI have labored for years to keep secret, the images give a unique and searing insight into a grisly period in US history. The drawings, which Zubaydah has annotated with his own words, depict gruesome acts of violence, sexual and religious humiliation, and prolonged psychological terror committed against him and other detainees. They were sketched from memory in his Guantánamo cell and sent to one of his lawyers, Prof Mark Denbeaux.”

https://www.theguardian.com/law/2023/may/11/abu-zubaydah-drawings-guantanamo-bay-us-torture-policy