Sunday, July 31, 2022

LGC Newsletter – July 2022

 Guantánamo Bay

Yemeni prisoner Khalid Ahmed Qasim, who has been held without charge or trial at Guantánamo for over 20 years, has been cleared for release by the periodic review board. He is one of 21 of the remaining 36 prisoners who have been cleared but will remain at Guantánamo for now as the US looks for safe third countries to host them. Only four of the remaining prisoners are “forever” prisoners, whose status has not been clarified and are being held indefinitely; three of them were previously tortured at CIA secret facilities around the world before arriving at Guantánamo.


A three-week pre-trial hearing commenced in the case of Abd Al Nashiri, accused of involvement in attacking a US navy vessel in the Gulf of Aden in 2000. During the hearing, it was revealed that he had told FBI agents that he had been waterboarded by the CIA, as testified by an interpreter; however, this information is not included in the official account of his interrogations prosecutors want to use as evidence of his confession in his death-penalty trial. The interpreter’s testimony also revealed that “The C.I.A. had a secret role at Guantánamo in the detention and interrogations of the men by F.B.I. and Navy law enforcement agents, including collecting the notes from interrogations” and “The C.I.A. required that the interrogators write their accounts of what they learned on agency computers, which were classified”. During the pre-trial hearing, lawyers also raised arguments related to his mental health situation. As a member of the courtroom staff tested positive for Covid-19, the hearing was closed before the end of the first week until at least the middle of the first week of August.

Thursday, June 30, 2022

LGC Newsletter – June 2022

Guantánamo Bay

One of the very few “convicted” (through torture evidence and secret plea bargain) prisoners at Guantánamo, Majid Khan completed his 10-year sentence on 1 March. His lawyers are now suing the US government for failing to release him for more than three months, “arguing that the US has an obligation to resettle him somewhere, based on his cooperation with authorities”. One of his lawyers, Katya Jestin, said in a statement: “"The government's failure to transfer Majid after serving his sentence makes the military commissions system utterly pointless.

“Why have a trial and sentencing, let alone plead guilty and cooperate with the United States, if you aren't released at the end of your sentence? It's a failure of policy and may have larger programmatic consequences for the government.”


Iraqi prisoner Nashwan al-Tamir, aka Abd al-Hadi al-Iraqi, entered a plea bargain on 13 June before the military commission, pleading guilty to “war crimes charges for his role in al-Qaida attacks against U.S. and allied forces along with civilians in Afghanistan”. Held at Guantánamo for over 15 years and with pre-trial hearings in his case dragging on for many years with no clear progress, “He pleaded guilty to four of five charges against him, including conspiracy and several violations of the international laws of war as an al-Qaida commander early in the conflict in Afghanistan that formally ended with the U.S. withdrawal in August.

“He was facing up to life in prison but is expected to be eventually transferred out of Guantanamo and sent to a third country under the terms of his plea deal after he undergoes additional medical treatment at the base”.

“This is the first plea agreement in a Guantanamo case since the election of President Joe Biden, whose administration has been working to gradually reduce the number of prisoners at Guantanamo and move at least closer to being able to close it”.


Former Algerian prisoner Saber Lahmar, who was released to France in 2009 and has been joined by his family there, has been given a 10-year sentence in Bordeaux for spreading jihadist propaganda and reportedly inciting people to go and fight in Syria. His co-defendant was acquitted of all charges. He has consistently denied the charges and his lawyers have said they will appeal the sentence. He was never charged or tried at Guantánamo.


Asadullah Harun Gul, one of the last two Afghans left at Guantánamo, has been released to his family in Afghanistan after more than 15 years and over 6 months after winning a habeas corpus petition in the US courts in which the judge ordered his release. There are now 36 prisoners at Guantánamo.

Tuesday, May 31, 2022

LGC Newsletter – May 2022

Guantánamo Bay

In a pre-trial hearing in early May in the capital case of Abd Al-Nashiri, accused of involvement in an attack on a military vessel in the Gulf of Aden in 2000, CIA torture architect, contract psychologist Dr James Mitchell, testified how “how he and his partner in building the CIA interrogation program, Dr. Bruce Jessen, conducted three waterboarding sessions of Abd al Rahim al Nashiri over multiple days in November 2002 in an effort to stop what the Bush administration believed was “a second wave” of terrorist attacks to follow those on Sept. 11, 2001.” They stopped as the victim was too small in size to continue; at the time, Al-Nashiri weighed only 120 lb. Providing more of the kind of confessional testimony that should be used in his own war crimes trial, “Mitchell said that al Nashiri began providing useful intelligence in subsequent interrogation sessions at Location 3, leading the interrogation team to “taper off” from what the CIA referred to as its “enhanced interrogation techniques,” or “EITs.” For al Nashiri, Mitchell said these techniques also included sleep deprivation, slapping, periods of confinement in a box and a process of being repeatedly pushed hard against a wall known as “walling.” According to his testimony, Mitchell based the techniques on those he used as an instructor in the Air Force’s Survival, Evasion, Resistance, and Escape, or SERE, program, which puts trainees through abusive situations to prepare them for capture by hostile forces.

“Mitchell said Monday afternoon that al Nashiri would crawl into the confinement box to get away from the bright lights in his cell that were on 24 hours a day.

“Nashiri actually liked being in the box,” Mitchell said.”

In the same hearing, another Guantánamo prisoner, Yemeni Abd al Salam al Hilah, who has been cleared for release, was due to give two days of testimony against Al-Nashiri, however on the morning of his testimony, he refused to attend court. Attending the following day, he stated “he had “nothing to hide” but was concerned that the government would “manipulate” his answers and use them against him. His voice rising at times, al Hilah said that both he and his family have suffered during his 20 years in U.S. custody.

“Lyness [al Hilah’s lawyer] rose to say that his client’s statement was a “clear invocation” of his right against self-incrimination. [Judge] Acosta agreed and decided that the deposition would not go forward. He recessed the commission until the next hearing, scheduled to start July 25”.

Former British resident, Ugandan Jamal Kiyemba, who was released from Guantánamo without charge or trial in 2007, has been charged and faces trial for alleged membership in 2021-2022 of the Allied Democratic Forces (ADF), a rebel group designated a terrorist organisation in Uganda, along with others. He has been remanded in custody pending investigation. He denied the charges.


Saturday, April 30, 2022

LGC Newsletter – April 2022

 Guantánamo Bay

Algerian prisoner Sufiyan Barhoumi, 48, was repatriated in early April, after spending almost 20 years at Guantánamo. Kidnapped in Pakistan, he was never put on trial, and was cleared for release by the periodic review board in 2016. It took an additional six years to reunite him with his family in Algeria.

There are currently 37 prisoners held at Guantánamo, most of whom have been cleared for release.

The last Algerian prisoner held at Guantánamo, Said Bin Brahim Bin Umran Bakhush, has also been cleared for release this month by the periodic review board.

In addition, the youngest prisoner currently held at Guantánamo, Yemeni Hassan Bin Attash, who was handed over to the US by Pakistani security forces in 2002, has been cleared for release. He was 17 at the time and has never been charged. Brother of one of the 9/11 defendants, he was brought to Guantánamo in 2006 at the same time as his brother but has never met him there.


Former Mauritanian prisoner, Mohamedou Ould Slahi, is suing the Canadian government for $35 million for its alleged role in his 14-year detention at Guantánamo. Ould Slahi claims that the Canadian government, “caused, contributed to and prolonged [his] detention, torture, assault and sexual assault at Guantanamo Bay."

“Slahi, a Mauritanian national, lived in Montreal from November 1999 to January 2000, during which time he was investigated by security services. Slahi, 51, is accusing Canadian authorities of harassing him during their investigation, with the stress forcing him to return to Mauritania.

“The core of Slahi's claim is that Canadian authorities shared false information about his activities and otherwise contributed to events that eventually led to his arrest, after which he was transported first to Jordan and Afghanistan, and then Guantanamo Bay, where he spent 14 years imprisoned without charge.”


Defence lawyers have visited the now-closed CIA-run camp 7 at Guantánamo where prisoners were held from 2006 to 2021. They have described the conditions they saw as “exceedingly disturbing” and that the prisoners, who were considered “high-value detainees” and had previously spent several years in various secret CIA torture prisons around the world, were held in conditions similar to being “buried alive”. They have called for any sentences given to prisoners held there currently facing trial to be reduced in view of the ordeal of being held prisoner there.

The lawyers “are currently gathering information and evidence, including taking photographs and bringing experts to inspect the now-abandoned site. The attorneys also want anything that the men said while detained at the camp to be excluded from their cases, arguing that the camp was "indistinguishable" from the CIA black sites where detainees were tortured.”

Pre-trial hearings in the 9/11 case involving five prisoners due to be held next month have now been cancelled.

A pre-trial hearing did, however, take place in the case of Yemeni prisoner Abd Al-Nashiri in the last week of April. Key witnesses in the hearing include CIA torture architect James Mitchell and army torturer Damien Corsetti. Other witnesses include agents who had interviewed another suspect in this same case.  

Thursday, March 31, 2022

LGC Newsletter – March 2022

 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.”


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.”


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.””


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.”