NEWS:
Guantánamo Bay:
Nine prisoners were released from Guantánamo
Bay this month, bringing the number of remaining prisoners to 155 in total. All
nine men had been cleared for release many years earlier. On 5 December, it was
announced that Djamel Ameziane, who had been on hunger strike and tube-fed
since 2008, and Belkecem BenSayah, had been returned to Algeria. Both men had
strongly opposed being returned to the country, particularly Djamel Ameziane,
who had hoped to seek asylum elsewhere, having fled the country during the
civil war in the 1990s fearing persecution; he had a pending application for
resettlement in Canada. Upon return to the country, both men “disappeared”
until they were released on 16 December.
The return of the two men, particularly of
Ameziane to Algeria sparked criticism from various bodies and NGOs, including
the UN, as the repatriation was in violation
of the principle of non-refoulement, “which
prohibits transfers and deportations of individuals to countries where they may
run the risk of being tortured.”
Other Algerians released from Guantánamo also
would have preferred to stay at the prison facility than be returned to their
country, and were also detained and “disappeared” upon release and continue to
face persecution.
On 16 December, two Saudi prisoners, Said
Muhammad Husyan Qahtani, and Hamoud Abdullah Hamoud were released; both men
were cleared for release in 2009.
Their release was followed by the release two
days later of two Sudanese prisoners to their home country: Noor Uthman
Mohammed, who had completed his sentence following conviction before a military
commission in 2011, having pleaded guilty to terrorism charges in a plea
bargain to avoid a life sentence, and Ibrahim Othman Ibrahim Idris, whose
released was ordered by a judge in October, and not opposed by the US
government, on the grounds of severe mental health – shortly after arrival at
Guantánamo, he was diagnosed as schizophrenic – and physical health problems.
Upon return to Sudan, both men claimed they had been tortured at Guantánamo on
a regular basis and Sudanese civil society organisations have demanded an
apology from the US for its treatment of Sudanese nationals, dismissing Mohammed’s
conviction as having been obtained through an unfair plea bargain.
On 30 December, the three remaining ethnic
Uighur Chinese prisoners, whose release had been ordered in 2008, but who remained
at Guantánamo for fear of persecution by the Chinese authorities, were sent to
Slovakia, who accepted three other prisoners in 2009 who were in need of a safe
third state to turn to.
There was further good news regarding the release
of cleared prisoners on 26 December when President Barack Obama signed into law
the National Defense Authorization Act (NDAA) 2014 which included provisions to
make it easier to transfer, and thus release, prisoners, although prisoners are
still not allowed to be transferred to the US itself. The provisions mean that
over half of the prisoners, who have been cleared for release and never charged
or tried, could soon be freed. Human rights NGOs have called on the government
to act quickly on this new opportunity to release many more prisoners. In
passing the law, Obama took the opportunity to criticise Congress for hindering
his ability to do more to close Guantánamo.
Former Guantánamo prisoner Omar Khadr’s lawyers
returned to court in Canada on 18 December in a $20 million lawsuit originally
brought against the Canadian government when Khadr was still held at Guantánamo
for its collusion in his torture and abuse by the US military at Bagram in
Afghanistan and at Guantánamo Bay. The lawsuit, originally brought in 2004,
concerns abuses of Khadr’s rights by his government, and his lawyers claim
there is new evidence to show that the Canadian government denied him his
constitutional rights while colluding with the US. The lawsuit
claims that the Canadian “governments [at the time
of his detention] were not passive bystanders in Khadr’s incarceration, but
willingly co-operated with the U.S. in violation of Canadian and international
laws,” as well as failed to
recognise him as a child soldier.
In new documents filed as part of the case,
Omar Khadr has publicly stated for the first time that he only pleaded guilty
because he was in a “hopeless situation”, and a guilty plea would be his most
likely way out of Guantánamo Bay. He also states that the agreement in the plea
bargain, and the facts as laid out in the case, were put together entirely by
the US government. He also stated that “he has never believed
Jews or Americans should be killed or deserve to die, and says he never
willingly joined an al-Qaida terrorist cell.” He also said that “he has no memories of that
battle or of the grenade that killed Sgt. Christopher Speer”.
When the case came to hearing, the judge
rejected the Canadian government’s claim to have the case dismissed but asked
his lawyers to rewrite the claim into a broader submission to include the new
issues, which will be presented to him in mid-January.
Days before this court hearing, Omar Khadr was
reclassified as a medium-security risk prisoner, instead of maximum risk, and
is likely to be transferred to the Bowden Correctional
Institution north of Calgary early next year. This followed a decision in
August to reclassify his status. At Guantánamo Bay, he had been assessed as
minimum risk. Medium-risk status will give him access to education and
rehabilitation programmes that will make easier for him to be given parole.
New (redacted) documents that have come to
light through a freedom of information (FOI) request show that the Australian
government of John Howard made false statements and knew that the US would use
evidence obtained through the use of torture in the military commission of
former prisoner David Hicks, and subsequently that he was tortured in US
custody, following his capture in Afghanistan in 2001. The documents include
e-mails and cables between Australian and US officials. Like Omar Khadr, Hicks
is in the process of appealing his conviction before a military commission,
which was also effectively his only way out of Guantánamo. He was released in
2007 and had to serve the rest of his sentence in Australia.
The pre-trial hearing resumed on 9 December in the
case of 5 prisoners alleged to have been involved in the 11 September 2001
attacks, with a closed hearing on the first day. In the next two days of the hearing,
the proceedings were interrupted several times by one of the defendants, Ramzi
Bin Al-Shibh, who was removed from the courtroom. Evidence obtained through
torture was one of the issues dealt with during the hearing, which has now been
halted until Al-Shibh is subject to a mental health assessment to see if he is
fit to stand trial. While the trial is set to resume in January or February,
further proceedings will be suspended pending the examination, which may last
up to one year.
In the meantime, the trial judge has ordered
the US government to preserve whatever is left of the CIA Bush-era secret
torture prisons, or “black sites”, around the world, which could provide
evidence once the actual trial starts, at the earliest, in 2015.
Abd Al-Nashiri, a Saudi citizen facing a
separate military commission, and potentially the death penalty, for his alleged
involvement in 2000 in the bombing of the USS Cole warship in the Gulf of Aden
lost a case to have the military commission deemed to lack jurisdiction to hear
the case as the attack took place prior to any declared hostilities between the
US and Yemen and was thus a peacetime attack. While he did not contest the
label of “enemy combatant” in the case, he sought to have the case heard by a
civil district court but the court held that in this case a military court had
jurisdiction.
Extraordinary Rendition
On 2-3 December, the European Court of Human Rights in Strasbourg heard
a case against Poland brought by two prisoners held at Guantánamo Bay, Abd Al
Nashiri and Abu Zubaydah, both currently facing trial before military
commissions, for the country’s role in their torture and rendition before they
were taken to Guantánamo Bay. The case was brought following the Polish
government’s failure to investigate and hold responsible officials to account.
The Polish government failed in a bid to have the hearing held in secret but
the first day was held in closed session, whereas the second day was public. A
judgment is expected in early January.
Abu Anas
Al-Libi, who was kidnapped and rendered to the US by the US military from the
streets of Tripoli, Libya, in October 2013, had a pre-trial hearing where
charges were laid against him for alleged involvement in the bombing of US
Embassies in East Africa in 1998, along with two other men, Adel Abdel Bary and
Khalid Al Fawzi, who lost their lengthy extradition battle to the US from the
UK in October 2012. A trial date for the three men has been set for November
2014. During the time that he “disappeared” off the streets of Tripoli and was
later claimed to be held and interrogated on board the USS San Antonio, it is
unknown whether he was abused and possibly tortured. Questions remain over the
legality of this operation; he was transferred to the US mainland due to
concerns about his health.
On 19 December, the government published a report into the findings of
the Detainee Inquiry http://www.detaineeinquiry.org.uk/2013/12/statement-by-the-inquiry-december-2013/
led by retired judge, Sir Peter Gibson. The report, of the partial findings of
the inquiry which collapsed in early 2012 due to the weight of criminal
investigations against the government for its involvement in torture and
rendition abroad, looked at the documents provided to it, but did not hold any
interviews with victims or their representatives, as it was boycotted by them
early on, and does not offer any fact-finding or conclusions. The government
originally received the report in mid-2012 but did not publish it until now.
The report was redacted prior to publication. The government then announced
that, contrary to its initial promises, the parliamentary intelligence and security committee (ISC) would take over the inquiry;
the ISC lacks independence and transparency and its members are nominated by
the prime minister.
On 20 December,
a High Court judge dismissed a case brought against MI6 and former foreign
secretary Jack Straw by Libyan rendition victim Abdel Hakim Belhaj and his
wife, as it would harm UK-US relations and British interests, as British and
American intelligence officers were involved. The judge did, however, state
that the claim that he was unlawfully abducted was “well-founded”. Mr Belhaj’s
lawyers plan to appeal the ruling.
Five non-Afghan
prisoners held at Bagram prison for over a decade following their rendition
there lost an appeal to have the right to file habeas corpus petitions to know
the reasons for their detention, as has been granted to Guantánamo prisoners.
The appeal judges upheld a previous ruling made in 2012 that the US does not
have jurisdiction over Bagram to allow the prisoners to enjoy such rights as it
does over Guantánamo http://www.lawfareblog.com/wp-content/uploads/2013/12/Maqaleh-et-al-Opinion-12-24-2013.pdf
Effectively, prisoners held at Bagram are held in worse conditions and have fewer
rights than prisoners at Guantánamo. Following the handover of Bagram to the
Afghan authorities in 2012, whereby the US only retains control over around 50
foreign prisoners that it considers high value, many of the Afghan prisoners
have been released. One of the appellants, Hamidullah, who was detained as a
minor and has never been tried or charged, was released to Pakistan along with
five other Pakistani prisoners. However, on their return to their own country,
they have been imprisoned by the authorities there and there have been some
claims of rough treatment. They now face trial in Pakistan with a hearing
scheduled for late January.
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