Saturday, September 30, 2023

LGC Newsletter – September 2023

 Guantánamo Bay

Pre-trial hearings continued in the case of five men accused of involvement in the September 2001 attacks in New York City where a decision is to be made on whether one of the men will be removed from the case, after being found unfit to stand trial last month.

In addition, in ongoing plea bargaining between the prosecutors and lawyers defending the five men, the Biden administration has 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 condition 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.


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.”


Thursday, August 31, 2023

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.


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.


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.


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”.

Monday, July 31, 2023

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.”


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.


Friday, June 30, 2023

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.”

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.””

“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.”


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:

The report:


Tuesday, May 30, 2023

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.


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.


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.

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.”

Friday, April 28, 2023

LGC Newsletter – April 2023

Guantánamo Bay

In the ongoing appeal case of Yemeni prisoner Abdulsalam Al-Hela, 55, who was cleared for release by the periodic review board in June 2021, in an opinion in the case, “the US Court of Appeals for the DC Circuit ruled that the authorities may not be allowed to keep a man imprisoned in Guantánamo Bay after he is no longer deemed a threat.” However, that does not mean that he will be released any time soon. He is one of 16 prisoners who have been cleared for release and remain at Guantánamo as the US has not found safe third countries to resettle them in; 10 of them are from Yemen and in spite of recent peace efforts in the country, the US has not made any efforts to repatriate or release any of these Yemeni prisoners. The outcome of this case will impact on all of the 16 men, some of whom have been cleared for release for many years.


Pre-trial hearings were held in April in the case of Abd Al-Nashiri. In the kind of  “justice” that can only be found at Guantánamo and under US patronage, Al-Nashiri’s torturers and former FBI agents were invited to give evidence, not at their trial for war crimes, but for the prosecution in respect to whether certain torture evidence should or should not be included in his trial. Al-Nashiri’s torture has already been well documented and prosecuted successfully twice at the European Court of Human Rights. One of the prosecution witnesses was CIA torture programme architect and psychologist Dr Bruce Jessen, who gave a demonstration of some of the “approved” torture techniques used against the defendant and others “at a secret interrogation site in Thailand in late 2002”. The judge allowed the demonstration “to show practices that C.I.A. officials had destroyed video evidence of two decades ago”. According to Jessen’s testimony, these practices “including waterboarding, nudity and isolation — were not meant to rob a prisoner of his will but to gain his cooperation and disclose Al Qaeda’s secrets to the C.I.A.” “Prosecutors have already agreed that nothing Mr. Nashiri said at the so-called black sites can be used at trial because evidence derived from torture and cruel, inhuman or degrading treatment is unlawful. But they defend as untainted his 2007 law enforcement interviews, which took place at Guantánamo at a former C.I.A. prison where Mr. Nashiri was held by the agency in 2003 and 2004.”

Another witness called by prosecutors was forensic psychiatrist Dr Michael Welner who claimed that Al-Nashiri “voluntarily confessed to having a role in the attack after four years in the C.I.A.’s secret [torture] prison network.”

“Abd al Rahim al Nashiri made incriminating statements to agents of the FBI and Naval Criminal Investigative Service in late January and early February 2007 about his alleged role in the bombing of the USS Cole in October 2000. The sessions took place in the detention center on the Guantanamo Bay Naval Base nearly five months after al Nashiri’s transfer from CIA black sites, where he endured waterboarding, threats of execution, nudity, stress positions, sleep deprivation, cramped confinement and other abuses. […]The government team hopes to introduce the incriminating statements at al Nashiri’s as-of-yet unscheduled death penalty trial for the attack that killed 17 sailors off the coast of Yemen. His defense team contends that al Nashiri’s years of torture and isolation at CIA black sites conditioned him to say whatever his interrogators wanted, rendering his subsequent statements to the FBI and NCIS in 2007 involuntary. They have asked the judge, Army Col. Lanny Acosta, to suppress the statements.”

The next hearing is scheduled for June.


Pre-trial hearings also took place in the trial of an Indonesian and two Malaysian prisoners accused of involvement in the 2002 Bali bombing. The hearing of the three men who were subject to extraordinary rendition in 2003 and have been in US detention since, although they have only been recently charged, saw prosecutors seek a 2025 trial for the case as much of the evidence is national security evidence (meaning it was probably obtained through the use of torture) and is secret. Lawyers for the defendants said that this timeline is too long, given that the defendants have been held by the US for over 20 years already and that prosecutors have yet to share the evidence they have almost two years after the case was first opened and the defendants brought to court. This hearing was their first since August 2021 when they were arraigned. The defendants protested about the use of interpreters, a persisting problem in the case with the wrong language being used, interpreters using English words – “For example, an interpreter could not remember how to say “interpreter” in Malaysian dialect” – which the defendants did not understand and could thus not follow the proceedings. “Separately, the judge declined to excuse an interpreter who had previously remarked that the U.S. government was “wasting so much money on these terrorists. They should have been killed a long time ago.” Instead, the judge cautioned the interpreters — who were working from a remote location — that he expected their translations to be “neutral, sanitized, surgical.””

According to the 2014 Senate Intelligence Committee on the CIA Torture Programme, in 2003, a CIA interrogator told one of the defendants “that he would never go to court, because “we can never let the world know what I have done to you”; the CIA is one of the agencies withholding the evidence in the case. One of the defendants’ lawyers “accused the U.S. government of misplaced priorities. It spent millions of dollars on “a systemic torture program,” she said. “But when it comes to administering justice, we want to penny pinch. We want to say, ‘We don’t have the resources. We don’t have the computers. It’s complex.’”


In rare and open criticism of prisoner conditions at Guantánamo, to whom it has access, a senior official at the International Committee of the Red Cross (ICRC) said that prisoners are showing signed of “accelerated ageing” and that “physical and mental health needs are growing and becoming increasingly challenging” for current prisoners. The statement followed a visit in March by the ICRC to Guantanamo. The ICRC called for better healthcare provision and an improvement in “the quality of contact with families, most notably in terms of frequency and length of calls, while bearing in mind the total absence of in-person visits.” It stated that “the sooner the US can overcome the political and administrative deadlock to responsibly transfer out those detainees deemed eligible, and determine the fate of all other detainees, the better it can shape whatever plans are required.”


The last Algerian prisoner Said bin Brahim bin Umran Bakush was repatriated to Algeria just before the Islamic Eid holiday. His is the sixth release in six months and brings the prisoner population down to 30, over half of whom are eligible for release. He was detained in Pakistan in March 2002 and was never charged or tried. He was cleared for release by the periodic review board in April 2022. Release from Guantánamo is not freedom and involves ongoing US surveillance and restrictive measures on travel and contact with other persons.


On 24 April, MPs, peers, human rights activists and former prisoner Mohamedou Ould Slahi started a new all-party parliamentary group to close Guantánamo.


Friday, March 31, 2023

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.


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.”

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.”  

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.