Archive for August, 2007

The story of Hedi Boudhiba, a 46-year old Tunisian, who has been abandoned in Spain after being extradited from the UK and cleared of all charges against him in the Spanish National Court, calls into doubt the quality of British and pan-European intelligence about activities related to terrorism, and also raises uncomfortable questions about the apparent absence of human rights safeguards in the “fast-track” extradition agreements for terror suspects that have been negotiated between various countries in the European Union.

A refugee, who fled religious persecution in the country of his birth, where he was tortured, and where the dictatorship presided over by Zine El Abidine Ben Ali has long waged a dirty campaign of intimidation, imprisonment and torture against even moderate political and religious opponents, Boudhiba was arrested at Liverpool’s John Lennon Airport, en route to Barcelona, on 20 August 2004. Held for 20 months in the notorious Belmarsh prison in south-east London, which gained a reputation as Britain’s own Guantánamo, because of the number of Muslim terror suspects held there without charge or trial, he suffered from psychosis and depression, and on one occasion attempted to commit suicide by slashing his throat and forearm. Speaking at the time, Boudhiba said, “Here I am tortured mentally and I suffer every day and I can’t find help from anyone. When I’m ill they don’t send me to hospital.”

Protestors at Belmarsh in October 2004.

While in Belmarsh, Boudhiba was interviewed not only by British intelligence agents, but also by representatives of the American, Portuguese and German authorities. Despite allegations that he was part of a terrorist network linked to 9/11, that he was involved in providing funding for fighters in Iraq, and that he was also involved in the now-discredited ricin plot in Britain, the British, American, Portuguese and German authorities all declined to either prosecute him or seek his extradition, but he became ensnared by the rules of the new, “fast-track” European Arrest Warrant –- which eases the extradition of suspects between EU countries –- after the Spanish authorities also turned up to interview him, and he refused to speak to them.

His lawyer, Julian Hayes, explained that, having previously spoken to representatives of the four countries mentioned above, Boudhiba said, “well, I’ve spoken to all these other authorities, you can see what I’ve said to them and I don’t frankly want to speak to you about it,” and added that, as a result, “one has to question the validity of that particular warrant.” Questioned for the BBC by Gerry Northam, who asked, “Are you saying that you suspect the Spanish are on a fishing trip and they just want to pull him in too see what he knows?” Hayes replied, “That is the suspicion,” and countered Northam’s follow-up question, “Well, why not let them fish?” by pointing out that “there’s been a free flow of information between these authorities and the Spanish can easily obtain that information.”

Despite assurances that the “fast-track” extradition programme would live up to its name, it took 20 months until Boudhiba was extradited to Spain. When he lost an appeal in the High Court in April 2006, Julian Hayes again complained, pointing out, “We have no guarantees given to us by the Spanish authorities that he would be allowed to stay in their country,” and adding that Boudhiba ran the risk of being returned to Tunisia, “where at the very least he’ll be tortured and at the very worst he’ll be killed.”

Speaking at the time, Boudhiba reinforced his lawyer’s complaints, saying, “They want to extradite me to Spain, as they could not find anything against me. The Spanish police could send me to Tunisia, and once I arrive in Tunisia, they can torture me and do to me whatever they like.” Denying the allegations against him, he added, “I swear, I have done nothing bad to anyone. I am not a terrorist. They want to accuse me no matter what, I can’t understand why. Is it because I am a Muslim or because I knew some people, and they have suspicions against these people? This isn’t justice. This is not a war against terrorists; this is a war against Muslims.”

Once in Spanish custody, where, as CBS News reported in January 2005, the Spanish anti-terror judge Baltasar Garzon claimed that he had travelled from Hamburg to Istanbul a week before 9/11 with a member of the Hamburg cell run by lead hijacker Mohammed Atta, Boudhiba effectively disappeared off the radar, only to resurface a few days ago, when Marianne Kremer, a human rights activist in Luxembourg, who is in contact with him, emailed me to request assistance.

Kremer reported that, after being held for 15 months in Spain, where he was unable to contact his family and was, on one occasion, set upon by another prisoner who bit off part of his nose (after which the authorities promised him plastic surgery, but failed to do so), Boudhiba was acquitted in July of all the charges against him in the Audiencia Nacional (Spain’s National Court), but was then “simply released from prison near Madrid with no money, no place to stay, and no passport.” Kremer explained that Boudhiba’s passport is still held at the Audiencia Nacional (and that everyone there is on vacation). As a result, despite being cleared, he has been reduced to something akin to a “ghost” presence in Spain, having not yet received an “official written verdict” from the trial, and is unable even to receive donations because the court has not yet returned his passport.

While this seems to me to be a rather shocking indictment of the ways in which the European Arrest Warrant has facilitated the movement of unwanted refugees around Europe without any oversight regarding the justice of their treatment, Kremer added a more worrying postscript, noting that Boudhiba remains terrified that the Spanish authorities, with the collusion of the British government, will attempt to return him to Tunisia. She reports that, during his extradition trial in the UK, “the Spanish Prosecutor Pedro Rubira signed a document stating that the Spanish cannot deport Hedi to a third country without the consent of the UK authorities.”

Although the BBC reported in October 2005 that Home Office minister Andy Burnham, citing Boudhiba’s case, pledged that extradited suspects would “remain absolutely protected from the death penalty or torture,” and that the British government “would not permit anyone it had surrendered to another European state to be sent on to a country which violated these human rights,” recent cases make it clear that, despite these apparent assurances, the British government is at the forefront of attempts to return unwanted refugees to countries where they face the risk of torture or death, having signed worthless “memoranda of understanding” with Jordan and Libya, allegedly guaranteeing the “humane” treatment of returned suspects, and having entered a similar agreement with the Algerian government.

In April and July, attempts by the UK government to return two Libyans and three Algerians –- held without charge or trial in the UK –- were turned down by the Special Immigrations Appeal Court (SIAC) and by appeal court judges, who ruled that all five faced the risk of torture, but the United States, another partner in this concerted effort to bypass international safeguards preventing the return of inconvenient individuals to countries where they face torture, recently opened a new front in this unprincipled diplomatic game by entering into a similar agreement with Tunisia.

In June, two Tunisian detainees in Guantánamo, Abdullah bin Omar and Lofti Lagha –- cleared for release by a military review board, which had concluded that they no longer represented a threat to the United States and no longer had any intelligence value –- were returned to the country of their birth, where they were promptly imprisoned, and where, according to human rights observers, bin Omar “has already been tortured, and has been told that if he does not confess falsely to crimes, his wife and daughters will be raped.”

As he paces the streets of Madrid, awaiting the return of his passport, Hedi Boudhiba –- finally liberated after three years of imprisonment based on “evidence” obtained through hearsay or torture that has evaporated like a mirage –- must be hoping that his persecution is now at an end, and that he, unlike Abdullah bin Omar, is not destined to become what bin Omar’s lawyer, Zachary Katznelson of the London-based legal charity Reprieve, described as “a guinea pig in a potentially deadly diplomatic experiment.”

In the meantime, while the unsettling questions about Hedi’s future remain unanswered, anyone who can help him out of his immediate crisis –- perhaps by providing a friendly contact in Madrid –- is encouraged to get in touch with Marianne at the following email address: marianne_kremer@hotmail.com

Andy is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press).

As published on CounterPunch and Indymedia.

[Note: Mr. Lagha’s first name is spelled incorrectly. It is “Lotfi” not “Lofti.”]

On Friday, in a second legal development dealing with Guantánamo (see here for the first), the administration attempted to revive its beleaguered –- and much reviled –- system of Military Commissions. Just as the tribunals at Guantánamo –- the Combatant Status Review Tribunals –- have been condemned for providing a pale and unjust imitation of habeas rights, the four-year history of the Commissions has been rocked by judicial setbacks and abortive, farcical proceedings, with a widespread belief that, like a mirror of the tribunals, the Commissions –- established to try those regarded as the most dangerous detainees in Guantánamo in a brand-new system that spurns both military law and civilian law as enacted on the mainland –- are another second-tier judicial system, as unjust and unprincipled as the CSRTs, and designed, like the tribunals, to secure a guilty verdict at all costs, and to prevent all mention of torture by US forces in a similar manner.

First condemned by the Supreme Court in June 2006, which ruled that they were illegal under US law and the Geneva Conventions, the Commissions were revived late last year when the Senate passed the criminally negligent Military Commissions Act, but they came unstuck as soon as they were reinstated, two months ago, when the government-appointed military judges in two cases –- that of child soldier Omar Khadr, and the Yemeni Salim Hamdan, who worked as a driver for Osama bin Laden –- closed down the proceedings because the MCA had authorized them to try “illegal enemy combatants,” whereas the CSRT process, which made detainees eligible for trial by Military Commission, had ruled only that they were “enemy combatants.”

Despite attempts by the government to dismiss the distinction as a mere technicality, the judges –- Army Colonel Peter Brownback (for Khadr) and Navy Captain Keith Allred (for Hamdan) –- refused to back down, and as the administration, in a fit of pique, declared that it would appeal the decisions, the stunning ineptitude of its renegade approach to the law –- a mixture of Stalinism and cowboy justice –- was highlighted as the botched DIY job that it really is when it was revealed that the appeal court in which the government would file its petulant complaints had not yet been established.

This darkly risible oversight has now been remedied. As the special appeals court convened on Friday, in what the New York Times described as “a borrowed courtroom half a block from the White House,” retired Army colonel Francis Gilligan, one of the military prosecutors, declared, “We’re attempting to start the trials,” although he added, a little sheepishly, “We’ve sort of had a judicial stall.” This, of course, was something of an understatement, and it remains to be seen whether the newly established and grandly titled “United States Court of Military Commission Review” can overturn the objections expressed by the military judges in June.

The session, convened to deal, in the first instance, with Omar Khadr’s case, did not get off to a good start. As soon as it began, defense lawyers challenged the very legitimacy of the court, “arguing,” as the Times put it, “that it was improperly constituted because its members were appointed not by the defense secretary, as the law calls for, but by a deputy secretary.” Ignoring this inconvenient truth, Gilligan said that the court should be able to accept that Khadr’s tribunal effectively declared him an unlawful combatant, “in part because al-Qaeda does not follow the rules of war,” adding that, even if the judges rejected that argument, the prosecution “should be permitted to present proof to a trial judge that Mr. Khadr was in fact an unlawful combatant and could therefore be prosecuted before a military commission.”

The judges did not appear to be convinced. Two of the three-man panel “expressed skepticism of the prosecution’s contention that the holding of prior status reviews could be read as having declared detainees unlawful combatants” –- as Brownback and Allred had argued when they had dismissed the cases in June –- and although all three judges indicated that they were considering whether the trial judges themselves could decide whether detainees were unlawful combatants and were therefore eligible for prosecution by Military Commission, it’s uncertain that Brownback and Allred will be convinced.

The administration also faces stiff opposition from the military defense lawyers who, as in the case of Lt. Cmdr. Charles Swift, who represented Hamdan until he was turned down for promotion and forced to leave the military last month, are prepared to sacrifice their careers to maintain opposition to what they regard as a system designed to justify torture and to break the law (Swift, it transpires, was not so easily dismissed, and will continue to lead Hamdan’s team as a civilian lawyer, from his new post at Emory University School of Law in Atlanta, and his successor, Army Major Thomas Roughneen, has already expressed his opposition to the system, explaining that he is “confident” that it will “collapse under high court scrutiny,” and adding, “It’s like the Titanic. You know someday the ship is going to sink. God almighty, let’s get there already”).

One of their number, Lt. Cmdr. William C. Kuebler, who recently described the Commissions as rigged, ridiculous, unjust, farcical, and a sham, and who added, “I think things have been done to people that under any definition except this administration’s very narrow one would be torture,” has already indicated that he remains implacably opposed to any attempt to revive the Commissions, telling journalists after the hearing, “This is about the credibility of the United States and the perception around the world of our commitment to the rule of law,” Like a gauntlet-hurling hero of old, he concluded, “This is a lawless process,” and I look forward to further legal fireworks as the limping administration attempts –- unsuccessfully, I hope –- to bully its way to further injustices.

For more on the Military Commissions, see my book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison.

A combination of this article and “411-0: opposition to Bush’s Guantánamo policy grows” was published in the print edition of CounterPunch, Vol. 14, No. 14, August 2007.

As the time steadily approaches when the US Supreme Court will consider whether, after over three years of stalling and obfuscation on the part of the administration, the detainees at Guantánamo will be allowed “full access to the US court system” and the right to challenge the basis of their detention in federal courts, the Associated Press reports that 411 senior officials from the United States and Europe –- 25 retired US diplomats, two retired rear admirals, a retired Marine general, and 383 current or former members of the European and British parliaments –- made their support for the detainees’ case clear to the Supreme Court on Friday.

Their opposition to the administration’s policies stems from a profound dissatisfaction with the tribunal system –- the Combatant Review Status Tribunals –- which were hurriedly established by the administration after the Supreme Court first ruled, 38 months ago, that the detainees had the right to challenge their detention, and after they had already spent two and a half years in a hermetically sealed legal limbo.

Far from being an adequate response, the tribunals –- in which three-member military panels reviewed the detainees’ status as enemy combatants, but the detainees themselves had no right to legal counsel and were not allowed to see the classified information on which most of the verdicts were supposedly based –- had been criticized from the moment of their inception, and were recently subjected to fierce condemnation by Lt. Col. Stephen Abraham, a member of the team responsible for compiling the “evidence” used in the tribunals, who criticized the entire process as severely flawed, often relying on “generic” evidence and designed solely to rubber-stamp the detainees’ prior designation as “enemy combatants” (as I reported here, here and here). Abraham’s statement, filed in a case in June, is widely credited with encouraging the Supreme Court –- in a reversal that was so rare that it last occurred 60 years ago –- to agree to take the detainees’ case in June, reversing a decision made just two months earlier.

In their submission to the Supreme Court, the 383 European politicians –- “of divergent political views,” as the AP put it –- declared that it was “important that even when faced with the threat of international terrorism, all states, including the United States, comply with the standards set by international humanitarian law and human rights law by granting full court access,” and added, pointedly, “The treatment of petitioners currently falls short of these standards.”

For their part, the 25 retired US diplomats pointed out that lower court rulings “supporting the Bush administration’s opposition to full court access” were “seized upon by repressive governments as a license to incarcerate their own citizens and others with impunity,” but the most trenchant criticism came from Brig. Gen. David M. Brahms, the senior legal adviser for the Marine Corps from 1985-88, Rear Adm. John D. Hutson, the Navy’s judge advocate general from 1997-2000, and Rear Adm. Donald J. Guter, the Navy’s judge advocate general from 2000-02, who declared that the CSRTs had been “tainted by the permissible use of evidence obtained by torture,” and stated, “If the United States holds prisoners indefinitely –- potentially lifetime imprisonment –- based on sham CSRT proceedings and without providing meaningful judicial review of their imprisonment, enemies in current or future conflicts may use that as an excuse to mete out similar treatment to captured American military forces.”

The complaints of these 411 men and women are not without precedent. In the last few years, a roll-call of retired US military commanders and diplomats (many of them staunch Republicans) and European parliamentarians have joined a chorus of disapproval from the leaders of other countries, from UN representatives, from religious leaders, and from judges, lawyers and human rights activists, pointing out essentially the same things: that the system is monstrously unjust, that it blackens the good name of the United States worldwide, that it empowers dictators by example, and that it endangers the lives of US soldiers and civilians abroad. This time, however, the timing may be significant, as the administration is due to begin court filings in its own defense in just six weeks’ time.

[Note: In a Yemen Observer article that has not been picked up elsewhere, David Remes, attorney for 15 Yemeni detainees in Guantánamo, “made it clear that the Bush administration wants to close down the detention [center] before the Supreme Court listens to the lawyers’ arguments about the center’s constitutionality late this year.” Remes specifically told the Observer that he believes that “The government might even close Guantánamo before the Supreme Court hears argument from the lawyers in early December, and it will probably issue its decision between April and the end of June. That is the last thing the government wants, and I predict that the government will close the detention [center] to avoid having to do so.” Discuss. Oh, and the article’s also good on the plight of Guantánamo’s largest and often overlooked constituency, the 100 or so Yemeni detainees who are still held there].

For more on the legal challenges to Guantánamo, see my book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison.

Launched just eight days ago, and already featuring 46,000 signatures, Amnesty International’s new petition campaign to close Guantánamo, Tear It Down, is just a click away.

Flash, clever and requiring very little time to participate –- which you do by signing up and removing one pixel from a picture made up of 500,000 pixels –- this is, of course, no substitute for more in-depth involvement in tackling the criminal politicians responsible for the existence of Guantánamo and the secret prisons, but if you’re reading this here then you probably already know that.

If not, settle in, get yourself a beverage of your choice, and feel free to browse through the archive. Click here for information about my book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison, and click here or on the image at the top of the page for the homepage.

OK, so the departing Attorney General was not as malevolent as some made out: more a willing pawn of his old friend George W. and his guiding brain, the recently departed Karl Rove, and, moreover, of the genuinely malevolent Dick Cheney, and his close associate David Addington. The notorious memorandum, in January 2002, which paved the way for torture at Guantánamo –- by dismissing the Geneva Conventions as “quaint,” and insisting that “strict limits on [the] questioning of enemy prisoners” hobbled efforts “to quickly obtain information from captured terrorists” –- was, for example, signed by Gonzales, but was actually written, as Barton Gellman and Jo Becker noted in a Washington Post series on Cheney in June, by the rather more articulate and definitely more fear-inspiring David Addington, Cheney’s chief counsel and his old buddy from the Reagan days, when the two men, revisiting the love of unfettered executive power that Cheney had first admired under Richard Nixon, bullied Congress to defend Reagan’s right to –- you guessed it –- do what he damn well pleased during the Iran-Contra scandal.

Bye bye, Gonzo. Photo: Ron Edmonds/AP.

So, a clown and a scapegoat, then, as was indicated in April by his repetitive memory loss during the Senate hearing into last year’s politically motivated dismissal of eight federal prosecutors, when, as the Washington Post reported, he “uttered the phrase ‘I don’t recall’ and its variants (‘I have no recollection,’ ‘I have no memory’) 64 times,” and as was proved conclusively by his attempt, during a previous Senate hearing in January, to explain that, although the Constitution states that “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it” (Section 9, Clause 2), this doesn’t prove that citizens actually have habeas rights in the first place. The full exchange, between “Gonzo” and Senator Arlen Specter, is worth revisiting, perhaps as a suitable epitaph for the newly departed and unlamented Attorney General.

GONZALES: [T]here is no express grant of habeas in the Constitution. There is a prohibition against taking it away. But it’s never been the case, and I’m not a Supreme –-

SPECTER: Now, wait a minute. Wait a minute. The constitution says you can’t take it away, except in the case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus, unless there is an invasion or rebellion?

GONZALES: I meant by that comment, the Constitution doesn’t say, “Every individual in the United States or every citizen is hereby granted or assured the right to habeas.” It doesn’t say that. It simply says the right of habeas corpus shall not be suspended except by –-

SPECTER: You may be treading on your interdiction and violating common sense, Mr. Attorney General.

GONZALES: Um.

In conclusion, then, there may no longer be a Fool on the Hill (or not that one, at least), but Cheney and Addington are still in place, and it was they (with Timothy Flanagan and John Yoo) who drafted not only the memo signed by Gonzales that stripped “terror detainees” of their rights under the Geneva Conventions, but who also masterminded four other crucial documents whose aim was to elevate the President to the position of Dictator and Torturer-in-Chief, and which have done so much to tarnish the reputation of the United States, both at home and abroad: the open-ended Authorization for Use of Military Force (18 September 2001), a secret memorandum authorizing the warrantless surveillance of communications to and from the United States (25 September 2001), Military Order No 1, which stripped foreign terror suspects of access to any courts, authorized their indefinite imprisonment without charge, and also authorized the creation of “Military Commissions,” before which they could be tried using secret evidence (13 November 2001), and the notorious “Torture Memo” of 1 August 2002, which sought to redefine torture as nothing less than organ failure or death.

The call to impeach Cheney is here. The notoriously secretive Addington, meanwhile, needs vilifying as regularly and as publicly as possible. As a lengthy US News and World Report article in May 2006 explained (which highlighted Addington’s role as, amongst other things, the shepherd of Bush’s lawless “signing statements,” and a key player in the fiction that Saddam Hussein tried to buy uranium from Niger), he’s “the most powerful man you’ve never heard of.” Now that’s scary.

Addington, as seen by The Heretik.

For more on the development of US torture policy, see my book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison.

As published on CounterPunch.