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.

https://www.bbc.co.uk/news/world-africa-60970825

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.

https://www.democracynow.org/2022/4/28/headlines/guantanamos_youngest_prisoner_cleared_for_release_20_years_after_he_was_jailed_without_charges

 

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.”

https://www.cbc.ca/news/politics/guantanamo-bay-detainee-lawsuit-canada-1.6428886

 

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.

https://www.middleeasteye.net/news/guantanamo-detainees-cia-camp-reduced-sentences

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.

https://www.upi.com/Top_News/World-News/2022/04/27/Cuba-USS-Cole-organizer-hearing-Guantanamo-Cuba/7921651100208/  

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.”

https://www.aljazeera.com/news/2022/3/3/us-supreme-court-blocks-testimony-over-guantanamo-detainee

https://www.scotusblog.com/2022/03/fractured-majority-allows-government-to-withhold-information-on-torture-at-cia-black-sites/

 

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.”

https://www.pbs.org/newshour/politics/after-20-years-at-guantanamo-mohammad-ahmad-al-qahtani-transferred-out-of-detention-facility-back-to-saudi-arabia  

 

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.

https://www.dailymail.co.uk/news/article-10600481/Defense-lawyer-9-11-suspect-resigns-performance-conduct-investigation.html

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.

https://www.theguardian.com/us-news/2022/mar/15/september-11-khalid-sheikh-mohammed-prosecutors-plea-deal-report

 

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 1^st 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.”

https://www.nytimes.com/2022/03/11/us/politics/terrorist-gitmo-sentence-majid-khan.html

 

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.””

https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=28288&LangID=E

 

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.”

https://www.matrixlaw.co.uk/news/court-of-appeal-allows-appeal-in-claim-by-guantanamo-bay-detainee-against-uk-government/ 

 

LGC Newsletter – February 2022

Guantánamo Bay

In a brief filed by the Biden administration at the end of January in the case of Abd Al Nashiri, facing the death penalty for his alleged role in the 2000 bombing of a US naval vessel in the Gulf of Aden, it made an important U-turn on the use of torture bringing it into line, in this military commission, with international law, by categorically rejecting “the use of statements obtained through torture at any stage in the proceedings and promis[ing] that the government will not seek to admit any statements the petitioner made while in CIA custody”. Al Nashiri, who was kidnapped and rendered in the UAE in 2002, has already successfully brought claims for torture collusion against Poland and Romania, where he was held illegally and secretly and tortured, among other countries, before he arrived at Guantánamo in 2006.

https://www.justsecurity.org/80047/biden-team-gets-it-right-on-inadmissibility-of-torture-evidence-in-al-nashiri-case/

 

The US government has agreed to repatriate Saudi prisoner Mohammed Al-Qahtani, who suffers from severe mental health problems following his torture and detention by the US, to Saudi Arabia for treatment at a specialist facility there. He was cleared for release by the periodic review board and may return to Saudi Arabia in March. His legal team have been calling for him to be released and to receive psychiatric care for a long time. While the board calls for continuing security and surveillance upon release, his lawyers stated: "Despite the severity of his illness, Mohammed has never posed a risk to anyone but himself. In recent years the voices in his head have increasingly told him to harm himself—by doing things like swallowing broken glass and not disclosing it to his doctors—making his transfer out of Guantánamo an urgent matter. We are hopeful that Mohammed's torment will be lessened when he is in the care of trusted psychiatrists who speak his native language, far from the scene of his torture, and where he can receive vital support from his family."

https://edition.cnn.com/2022/02/08/politics/guantanamo-detainee-saudi-arabia/index.html

The review board also cleared fellow Saudi prisoner Ghassan Al-Sharbi, who was detained in Pakistan in 2002, for release. He has never been charged or tried. A majority (20) of the remaining 39 prisoners are now cleared for release.

 

Pre-trial hearings in the case of an Indonesian and two Malaysian prisoners due to be held at the end of February and early March were cancelled after prosecutors informed the judge that they could not comply with his order to produce two adequate court Malay and Indonesian interpreters who are security cleared for the hearing. Problems with biased interpreters and/or speaking the wrong language have already marred this case. Prosecutors have also announced that they are seeking to start the trial at the end of December 2023.

LGC Newsletter – January 2022

Guantánamo Bay

The periodic review board has cleared five prisoners for release, although this does not mean they are likely to leave Guantánamo Bay in the near future. The number of prisoners now cleared for release, from among the 39 remaining after 20 years of arbitrary detention, is 18. A further 9 prisoners face no charges or trial and are held as “forever prisoners”. The five men are: Somali Guleed Hassan Ahmed (also called Guled Hassan Duran); Kenyan Mohammed Abdul Malik Bajabu; and Omar Muhammad Ali al-Rammah, Moath Hamza al-Alwi, and Suhayl al-Sharabi from Yemen. Somali Guleed Hassan Ahmed is the first prisoner who was previously held and tortured at secret CIA sites and alleged to be a “high-value” (or most tortured) detainee by the US military to be cleared for release.

https://www.aljazeera.com/news/2022/1/12/us-approves-release-five-more-guantanamo-detainees

 

In a rare and strongly-worded statement, the International Committee of the Red Cross (ICRC), which has had rare access to the prisoners almost since Guantánamo opened in January 2022, called for the release of the remaining prisoners. To mark the 20^th anniversary of this engagement on 18 January, the ICRC put out the following statement calling on the US authorities to close the prison and release the prisoners: “The ICRC is gravely concerned that the remaining people held at Guantanamo Bay have been behind bars for so many years with little or no clarity as to what will happen to them. The ICRC notes that some detainees remain in Guantanamo Bay today despite the fact they were deemed eligible for transfer more than ten years ago.

“The detainees deemed eligible by the US government should be transferred today," said Patrick Hamilton, the ICRC's head of delegation in the United States and Canada. "After 20 years and well over 100 visits, we see that the more time passes for these detainees, the more they and their families suffer. The humanitarian rationale for enabling those to leave who are cleared to do so is obvious, and all the more so for those whose departures have been delayed for so long.”

https://www.icrc.org/en/document/icrc-calls-transfers-eligible-guantanamo-detainees

 

A February hearing into the case of Abd Al-Nashiri, accused of involvement in the bombing of the USS Cole in the Gulf of Aden in 2000, has been adjourned due to the “heightened risk of Covid” at Guantánamo at present. The next scheduled hearing is due to take place from 28 February in the case of an Indonesian and two Malaysian prisoners accused of involvement in the Bali bombing in 2002. The three were arraigned in August 2021 but problems arose with the interpreters whom the defendants could not understand and who were accused of bias, thus they did not enter a plea at the time. A report into the case has shown that the military judge, Commander  Hayes C. Larsen, agrees with the defendants that the interpreters were biased and has given the government until February to find adequate and security-cleared interpreters for the case to proceed, with two for each language (Malay and Indonesian), and has ordered the government to analyse the problems with the Malay interpreting at the August 2021 hearing.

https://www.malaymail.com/news/malaysia/2022/01/26/report-guantanamo-bay-terror-trial-judge-agrees-with-two-malaysians-asserti/2037658

 

LGC Newsletter – December 2021

Guantánamo Bay

In early December, a senate hearing was held on closing Guantánamo, the first of its kind in over 6 years. As Guantánamo heads towards its twentieth anniversary, having opened in its current incarnation on 11 January 2002, senators from both Congress and the Democrats broadly rehashed arguments on why Guantánamo should remain open or close they have made over the past two decades. Both, however, expressed dissatisfaction at the Biden administration’s stance on the facility. Although Biden’s administration has stated that closing Guantánamo is a goal, it has not taken any measures or set out any plans to this end. One of the witnesses at the hearing was Chief Defense Counsel for Military Commissions Brig. Gen. John Baker who “argued that the ongoing cases must be brought to "as rapid as a conclusion as possible […] Notice I don't say as just a conclusion as possible. It is too late in the process for the current military commissions to do justice for anyone," he said, calling the proceedings a "failed experiment" and noting they had only resulted in one final conviction.”

https://abcnews.go.com/Politics/guantanamo-detention-camp-hearing-parties-express-disappointment-biden/story?id=81609487

The New York Times has also reported that the Pentagon is reportedly building a second courthouse at Guantánamo scheduled for completion by 2023, even though no trial dates have been scheduled in any of the pending cases, some of which remain at pre-trial stage a decade after charges were pressed. In its almost 20 year history, more prisoners have died than have been convicted at Guantánamo, and the majority of those convictions have been overturned on appeal. More than half of the current 39 remaining prisoners face no charges or trial. Trials held at Guantánamo do not meet internationally recognised general standards for a fair trial or justice.

https://www.dailymail.co.uk/news/article-10356855/Pentagon-building-SECOND-secret-courtroom-Guantanamo-Bay.html

 

A two-week pre-trial hearing was held in the case of Yemeni prisoner Abd Al-Nashiri, accused of attacks on a US naval vessel in the Gulf of Aden in 2002. Part of the hearings were held in closed session and considered evidence in the case and the ability of the defendant, who faces the death penalty, to attend these hearings as the journey to and from the courtroom to his prison cell have long caused him severe pain and discomfort: “His lawyers are seeking a court order to let him spend the night before a hearing at a specially equipped holding cell at the court, as a disabled prisoner in another case has done”. His lawyers called in a torture expert in an attempt to have him excused from attending as the defendant “who was subjected to waterboarding and a mock execution by the C.I.A. in 2002 still has nightmares of drowning, sleeps with a light on in his cell and can shower only in a trickle of water. When he has been driven to court in a standard windowless detainee transport van, the defendant, Abd al-Rahim al-Nashiri, 56, also gets nauseated and vomits from flashbacks to a period when agents confined him nude and shivering inside a chilled, cramped box, part of the “enhanced interrogation” program at the agency’s secret sites.” The testimony given by Dr Sondra Crosby highlighted how Guantánamo “still has no formal program for providing care to torture victims”. The hearing revealed some details of the torture he suffered while in CIA custody.

https://www.nytimes.com/2021/12/14/us/politics/guantanamo-bay-abd-al-rahim-al-nashiri.html

 

Lt. Col. Michael D. Zimmerman, the fourth judge in the case of Abdul Hadi Al-Iraqi, who was charged in 2014, has stepped down from the case after being offered a fellowship at the FBI. “Unlike federal judges, who are given lifetime appointments, military judges generally serve for a few years at military commissions and then move on to other legal roles or retire, creating delays and disrupting continuity in cases.” Before leaving the case, he cancelled the next scheduled pre-trial hearing set for 4-7 January 2022. Al-Iraqi’s defence lawyers “Monday called on Colonel Zimmerman to quit and to vacate rulings he had made since being assigned to the case in September 2020” but he declined to do that.

https://www.nytimes.com/2021/12/23/us/politics/guantanamo-judge-quits.html

LGC Newsletter – November 2021

Guantánamo Bay

After Guantánamo Bay prisoner Majid Khan read out a statement containing details of the torture he faced in CIA torture prisoners during his sentencing hearing at the end of October, members of the jury in the case wrote a letter “urging clemency for Guantanamo Bay detainee Majid Khan, calling his account of torture at so-called CIA black sites a “stain on the moral fiber of America”. The seven officers were part of an eight-member military jury that on Friday [29 October] issued a sentence of 26 years in prison to Khan for his support of al-Qaeda in the wake of the September 11 attacks. Khan had previously pleaded guilty in 2012 to serving as a courier for the group and helping to plan attacks.” The letter, published in The New York Times, stated that his treatment went “well beyond enhanced interrogation techniques, instead being closer to torture performed by the most abusive regimes in modern history. This abuse was of no practical value in terms of intelligence, or any other tangible benefit to US interests,” the letter said. “Instead, it is a stain on the moral fiber of America; the treatment of Mr Khan in the hands of the US personnel should be a source of shame for the US government.”” Khan is expected to be released next year due to the plea deal which formed the basis of his conviction, which the jury was not told about. It is not known whether this letter will have any influence on the case.

https://www.aljazeera.com/news/2021/11/1/stain-on-moral-fiber-us-military-jury-condemns-detainee-tortur

https://www.justsecurity.org/78933/military-officers-handwritten-clemency-letter-at-guantanamo-what-it-says-about-who-we-are/

 

A 3-week pre-trial hearing was held in the case of five men accused of involvement in the 11 September 2001 attacks in New York City. The case, sitting with a new judge, Colonel Matthew McCall, did not call any witnesses for this hearing and instead focused on procedural matters and the disclosure of evidence to the two parties, especially of classified and secret prosecution evidence relating to the torture of the defendants; hearings were not held on every single day during the 3-week period.

https://www.nytimes.com/2021/11/19/us/politics/guantanamo-torture-fbi-cia.html

https://www.lawdragon.com/news-features/2021-11-08-lawyers-in-9-11-case-seek-evidence-of-psychological-scars-of-cia-interrogators

 

The Pakistani government has announced that 73-year old Saifullah Paracha, the oldest prisoner held at Guantánamo, will soon be repatriated to Pakistan. He was cleared for release earlier this year and is in bad health. The Pakistani government said that it is “coordinating with the US authorities for the repatriation of Paracha and some other Pakistanis from Guantanamo Bay.

“In a written reply to the Senate, the US State Department stated that Washington was in contact with Islamabad and the two countries were completing the necessary formalities for Paracha’s extradition to Pakistan.”

https://tribune.com.pk/story/2330145/oldest-guantanamo-bay-prisoner-to-be-extradited-to-pakistan-soon-says-govt

 

The family of Abdulqadir al Madhfari, one of twelve former Yemenis prisoners released to the UAE in 2016 and repatriated to Yemen in October, reported that he disappeared in mid-November after being detained by Houthi militia members. Suffering from mental health problems since his detention at Guantánamo and then in the UAE, he was effectively released only in October and several weeks later was detained again. His family do not know where he is being held and have been denied access to him.

https://theintercept.com/2021/11/19/guantanamo-detainee-disappeared-yemen/

 

On 25 November, the European Court of Human Rights in Strasbourg found in a case brought by two French former prisoners, Nizar Sassi and Mourad Benchellali, in Sassi  and  Benchellali  v  France, that the French foreign ministry and intelligence services had not breached Article 6 of the European Convention on Human Rights (right to a fair trial), when they visited the men at Guantánamo seeking information for their own investigations in France on three separate occasions, and that the statements given while in detention were not used to bring criminal charges against them in France. Upon their release from Guantánamo in 2004, without charge or trial, the two were tried and convicted of terrorism offences, and subsequently filed a complaint on their release. The Court had previously thrown out their claim under Article 3, prohibition of the use of torture. Considering the visits and questioning an administrative matter, the Court dodged having to deal with the lawfulness under European law of member states questioning their citizens while held in unlawful arbitrary detention abroad.