Archive for February, 2010

Don’t renew control orders, CAMPACC, JUSTICE and the Joint Committee on Human Rights tell MPs

The House of CommonsTomorrow (March 1), Parliament will vote on whether to renew the government’s control order regime, a form of house arrest for alleged terrorist suspects, who are held without charge or trial on the basis of secret evidence. This lamentable system was established in haste in 2005, when the Law Lords ruled that the government’s previous response to the alleged terror threat — imprisonment without charge or trial, which was, in essence, a revival of “internment” — was illegal. Since last June, when the Law Lords ruled that imposing control orders breaches Article 6 of the European Convention on Human Rights, which guarantees the right to a fair trial, the system has appeared to be on its last legs, but the government is obstinately refusing to abandon it.

In recent days, three organizations have urged MPs not to renew the control order regime, which they must do on an annual basis for the system to survive. Firstly, Parliament’s Joint Committee on Human Rights issued its 16th report on Counter-Terrorism Policy and Human Rights. In a compelling document, available here, the Committee drew on evidence against the renewal of control orders provided by two of the detainees’ solicitors and also from three Special Advocates (who represent the men in closed sessions when secret evidence is discussed, but are then prevented from exchanging any information whatsoever with their clients) to reinforce its ongoing criticism of the regime. I recommend those with an interest in the topic to read the whole damning report, but reproduce below the final three paragraphs, which succinctly explain the problems with the regime, and call for its replacement with surveillance and prosecutions:

110. Since the introduction of the control orders regime in March 2005, on all previous annual renewals, we have expressed our very serious reservations about renewal unless the Government was prepared to make the changes to the system we have identified as necessary to render it human rights compatible. We warned that without those changes, the use of control orders would continue to give rise to unnecessary breaches of individuals’ rights to liberty and due process. Our warnings have been echoed by other international bodies charged with monitoring compliance with human rights.

111. The many warnings have not been heeded. As a result, the continued operation of the unreformed system has, as we feared, led to more unfairness in practice, more unjustifiable interferences with people’s liberty, more harm to people’s mental health and to the lives of their families, even longer periods under indefinite restrictions for some individuals, more resentment in the communities affected by or in fear of control orders, more protracted litigation to which there is no end in sight, more claims for compensation, ever-mounting costs to the public purse, and untold damage to the UK’s international reputation as a nation which prizes the value of fairness.

112. For a combination of these reasons, together with serious reservations about the practical value of control orders in disrupting terrorism compared to other means of achieving the same end, we have reached the clear view that the system of control orders is no longer sustainable. A heavy onus rests on the Government to explain to Parliament why alternatives, such as intensive surveillance of the very small number of suspects currently subject to a control order, and more vigorous pursuit of the possibility of prosecution, are not now to be preferred.

In a similar vein, JUSTICE, the UK-based human rights and law reform organization, which has repeatedly called for the government to join the rest of the world in finding ways to introduce intercept evidence into court (PDF), issued a 4-page briefing on February 25 (PDF), which began by noting:

JUSTICE continues to oppose the use of control orders … We recognize that the UK faces a serious threat of terrorism and that public officials are under a duty to take effective measures to prevent further attacks. Nonetheless, we remain of the view that control orders are:

  • unnecessary
  • ineffective; and
  • offensive to basic principle

JUSTICE also stated that, because of the extraordinary amount of terrorist legislation introduced in the last ten years (in 2000, 2001, 2005, 2006 and 2008), “It beggars belief that there are insufficient criminal offences with which to charge those suspected of involvement with terrorism.”

And finally, today (February 28), CAMPACC (the Campaign Against Criminalising Communities) published an open letter to home secretary Alan Johnson, signed by over 100 lawyers, academics, journalists and activists, calling for control orders to be dropped. The letter, which covers all the major problems with the regime, is reproduced below, with its signatories, following a short press release by CAMPACC, which accompanied the publication of the letter.

Parliament should not renew unjust control orders
Issued by CAMPACC (The Campaign against Criminalising Communities)

The House of Commons will debate whether the controversial control order system will be renewed on Monday 1st March 2010. There are serious concerns about the renewal of control orders from all sections of our civil society. Attached is an open letter to the Home Secretary from over 100 individuals drawn from a range of professions and organisations urging him to not to pursue their renewal.

Control orders constitute permanent punishment without trial whereby the innocent can be placed under permanent house arrest on the basis of secret intelligence, possibly flowing from torture. As well as undermining the presumption of innocence, control orders also fail to protect the public from individuals who may be genuinely dangerous. Those who may wish to do us harm may easily remove their electronic tags, disappear and do their worst.

The fact that British citizens and residents can be subjected indefinitely to such extraordinary measures, with no effective means of challenge, contravening in important respects common-law guarantees of fairness as well as Article 6 of the ECHR, has damaged the reputation of the United Kingdom and does irreparable harm to the fabric of justice in this country.

For further information contact Estella Schmid (email or phone 020 7586 5892).

Open letter to Home Secretary Alan Johnson MP

Dear Home Secretary,

We write to urge you not to renew the control order provisions of the Prevention of Terrorism Act 2005, introduced in haste in March 2005 following the House of Lords Judicial Committee’s condemnation of indefinite detention of foreign terrorist suspects. In the five years of their operation, control orders have attracted criticism from national bodies including the Joint Committee on Human Rights, Justice, Liberty and Amnesty International UK, and eminent international bodies including the International Commission of Jurists, the UN Human Rights Committee and Human Rights Watch. This has focussed on the inherent unfairness of the orders, their reliance on secret evidence, and the devastating impact they have on those subject to them.

Impact

You will be aware (through reports presented during litigation and press coverage) of the severe impact of the orders on family and private life, and on the mental health of those subjected to them. This is acknowledged by Lord Carlile in his fifth annual review of control orders [PDF]. Partial house arrest, confinement to a restricted geographical area, wearing a tag, and the constant need to report, to seek permission, to have visitors (even medical visitors) vetted, and the stigma associated with being targeted in this way, takes a severe toll not only on controlled persons but on their families. Children’s school performance is badly affected by denial of internet access (making homework very difficult), by restriction of visitors, by fathers being unable to take their children out freely, by the disruption and fear caused by frequent house searches, and by children witnessing the humiliation and despair caused to their parents by these measures. The detrimental impact of the orders is even worse since, although in theory time-limited to a year, in reality, renewal of orders means that subjection to these draconian restrictions is endless.

The fact that there have been so few control orders in the five years of their operation — 44 in total according to Lord Carlile — gives the misleading impression that those controlled must be truly dangerous. But the small number of orders does not necessarily mean that the intelligence behind them is accurate. Not many people were hanged for murder when the UK had capital punishment — but a significant proportion turn out to have been innocent.

Unfairness

Major sources of unfairness are the use of secret evidence and the lack of real advance judicial scrutiny. Permission to make a non-derogating order can only be denied by a High Court judge if the decision to make the order, or the grounds for making it, are ‘obviously flawed’. This, and the lack of input from the proposed subject of the order, would not be such a problem if the review process was not subject to such delays, but at present the full review hearing rarely takes place within 12 months. During all this time, of course, the controlled person is subject to the full rigours of the control order.

The judge may quash the order at the full review stage, but only if there is no reasonable suspicion of involvement in terrorist activities. It is a very low threshold for the Home Office, and is frequently satisfied by evidence that neither the controlled person nor his advocate has had an opportunity to test in cross-examination. This remains the case despite the Judicial Committee’s ruling in June 2009 (in AF and another v Secretary of State for the Home Department [2009] UKHL 28) that the controlled person is entitled to enough disclosure to be able to answer allegations [this is the Law Lords’ ruling from June 2008, referred to above]; the Committee was referring to the amount of detail in the allegation, and not to the evidential foundation for the allegations, which generally remains closed. As Human Rights Watch has observed, the control order regime undermines the right to an effective defence, the principle of equality of arms, and the presumption of innocence.

Cost

Although it would be inappropriate to judge the control order regime by its cost-effectiveness as a principal criterion, it is reasonable to note that implementation of the orders has cost a fortune in litigation; the Joint Committee on Human Rights has calculated that total legal costs from 2006 to date are likely to exceed £20 million (taking into account the costs of legal aid and judicial sitting time), which is almost half a million pounds for each controlled person. Litigation has also seriously diminished the utility of the orders as a tool for controlling and disrupting terrorist activity, to the point where there must be very serious doubts as to their cost-effectiveness (compared with more targeted surveillance and effective use of the criminal justice system).

Reputation

The fact that British citizens and residents can be subjected indefinitely to such extraordinary measures, with no effective means of challenge, contravening in important respects common-law guarantees of fairness as well as Article 6 of the ECHR, has damaged the reputation of the United Kingdom and done irreparable harm to the fabric of justice in this country. In addition, public trust in the security services and the government is eroded, and communities whose co-operation is vital in the fight against terrorism are intimidated and alienated. In the words of solicitor Gareth Peirce, ‘This may affect only a small group of people but in terms of its contribution to what one might call the folklore of injustice it is colossal.’

For these reasons we urge you not to renew this legislation.

Yours sincerely

Mike Mansfield QC, criminal defence barrister, Tooks Chambers
Craig Murray, writer, broadcaster, human rights activist, former British Ambassador
Sir Geoffrey Bindman, solicitor
Lord Rea
Clare Short MP
John McDonnell MP
Victoria Brittain, writer and journalist
Dafydd Iwan, LL.D., President of Plaid Cymru, Party of Wales
Bruce Kent, Vice-President, Pax Christi
Louise Christian, human rights lawyer
Baroness Sarah Ludford MEP
Caroline Lucas MEP
Jean Lambert MEP
Frances Webber, human rights lawyer
Liz Fekete, Institute of Race Relation (IRR)
Carla Ferstman, Director, Redress
Ben Hayes, Statewatch
Peter Tatchell, human rights campaigner
Prof. Chris Frost, Head of Journalism, Liverpool John Moores University
Hilary Wainright, Co-editor, Red Pepper
Cori Crider, Legal Director, Reprieve
Paddy Hillyard, Emeritus Professor, QUB
Bob Jeffrey, University of Salford
Amrit Wilson, writer
Dr Richard Wild, University of Greenwich
Dr. Nafeez Mosaddeq Ahmed, Executive Director, Institute of Public Policy Research.
Andy Worthington, journalist and author of The Guantánamo Files
Lord Gifford QC, barrister and Vice-President of the Haldane Society of Socialist Lawyers
Liz Davies, barrister and Chair, Haldane Society of Socialist Lawyers
Anna Morris, barrister and Vice-Chair, Haldane Society of Socialist Lawyers
Professor Bill Bowring, barrister and International Secretary, Haldane Society of Socialist Lawyers
Dr Victoria Sentas, School of Law, King’s College London
Margaret Owen, Director WPD, international human rights lawyer
Phil Shiner, Public Interest Lawyers
Sam Jacobs, Public Interest Lawyers
Daniel Carey, Public Interest Lawyers
Tessa Gregory, Public Interest Lawyers
Moazzam Begg, Director, Cageprisoners
Massoud Shadjareh, Chair, Islamic Human Rights Commission
Aamer Anwar, human rights lawyer
Nick Hildyard, Sarah Sexton, Larry Lohmann, The Corner House
Desmond Fernandes, policy analyst and author
Dinah Livingstone, writer, translator, editor
Tim Gopsill, journalist, Editor of Free Press
Paul Donovan, journalist
Estelle du Boulay, The Newham Monitoring Project
Suresh Grover, Director of The Monitoring Group
George Binette, UNISON Camden
Arzu Pesmen, Kurdish Federation UK
David Morgan, Peace in Kurdistan Campaign
Alex Fitch, Peace in Kurdistan Campaign
Matt Foot, solicitor
Hugo Charlton, barrister
Dr Kalpana Wilson, London School of Economics
Jonathan Bloch, Lib Dem Councillor and author
Michael Seifert, solicitor and Vice-President of the Haldane Society of Socialist Lawyers
Kat Craig, solicitor and Vice-Chair, Haldane Society of Socialist Lawyers
Khatchatur I. Pilikian, Professor of Music & Art
Dr Alana Lentin, Senior Lecturer, Sociology, University of Sussex
Dr Christina Pantazis, University of Bristol
Professor Steve Tombs, Liverpool John Moore University
Claire Hamilton, Dublin Institute of Technology, Dublin
Professor Phil Scraton, School of Law, Queen’s University, Belfast
Dr Theodore Gabriel, University of Gloucestershire, Cheltenham
Dr Jan Gordon, University of Lincoln, Exeter
Dr Tina Patel, University of Salford
Professor Penny Green, Kings College, London
John Moore, University of West of England, Bristol
Professor Joe Sim, Liverpool John Moore University
Dr David Whyte, University of Liverpool
Dr Stephanie Petrie, University of Liverpool
Dr Dianne Frost, University of Liverpool
Martin Ralph, (UCU Committee), University of Liverpool
Dr Anandi Ramamurthy, University of Central Lancashire
Professor Jawed Siddiqui, Sheffield Hallam University
Dr Silvia Posocco, Birkbeck College, University of London
Dr Muzammil Quraishi, University of Salford
Dr Adi Kuntsman, University of Manchester
Professor Lynne Segal, Birkbeck College, University of London
Dr Joanne Milner, University of Salford
Dr Yasmeen Narayan, Birkbeck College, University of London
Professor Scott Poynting, Manchester Metropolitan University
Dr Liam McCann, University of Lincoln
Dr Pritam Singh, Oxford Brookes University
Sophie Khan, solicitor
Simon Behrman
Owen Greenhall
Martha Jean Baker
Russell Fraser
Ripon Ray
Stephen Marsh, barrister
Declan Owens
Rheian Davies, solicitor
Richard Harvey barrister
Deborah Smith, solicitor
Alastair Lyons, solicitor, Birnberg Peirce
Hossain Zahir , barrister
Chantal Refahi , barrister
Anna Mazzola, solicitor
Zareena Mustafa, solicitor
Lochlinn Parker, solicitor
Anne Gray, CAMPACC
Saleh Mamon, CAMPACC
Estella Schmid, CAMPACC
Dr Saleyha Ahsan, No More Secrets-Respect Article 5, film maker
Mohamed Nur, Kentish Town Community Organisation
Abshir Mohamed, Kentish Town Community Organisation
Samarendra Das, filmmaker and writer
Rebecca Oliner, artist
Rebekah Carrier, solicitor
Dr Smarajit Roy, PPC Green Party Candidate for Mitcham and Morden
PM Forbes, The Green Party, Sandhurst, Berkshire
Jayne Forbes, Chair, Green Party
Adrian Cruden, Green Party PPC Newsbury
Lesley Hedges, Green Party PPC Colne Valley
Sarah Cope, Green Party PPC Stroud Green
A Bragga, Green Party PPC for Stroud Green
Graham Wroe, lecturer, Sheffield Green Parry
Ånthony Agius, Hounslow Green Party PPC
Roy Vickery, Green Party PPC for Jostag

Note: Readers can also find a campaign against control orders on Liberty’s website, which I referred to in a recent article, “Will Parliament Rid Us of the Cruel and Unjust Control Order Regime?” and an Early Day Motion against the use of secret evidence, introduced by Diane Abbott MP, can be found here.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

For other articles dealing with Belmarsh, control orders, deportation bail, deportations and extraditions, see Deals with dictators undermined by British request for return of five Guantánamo detainees (August 2007), Britain’s Guantánamo: the troubling tale of Tunisian Belmarsh detainee Hedi Boudhiba, extradited, cleared and abandoned in Spain (August 2007), Guantánamo as house arrest: Britain’s law lords capitulate on control orders (November 2007), The Guantánamo Britons and Spain’s dubious extradition request (December 2007), Britain’s Guantánamo: control orders renewed, as one suspect is freed (February 2008), Spanish drop “inhuman” extradition request for Guantánamo Britons (March 2008), UK government deports 60 Iraqi Kurds; no one notices (March 2008), Repatriation as Russian Roulette: Will the Two Algerians Freed from Guantánamo Be Treated Fairly? (July 2008), Abu Qatada: Law Lords and Government Endorse Torture (February 2009), Ex-Guantánamo prisoner refused entry into UK, held in deportation centre (February 2009), Home Secretary ignores Court decision, kidnaps bailed men and imprisons them in Belmarsh (February 2009), Britain’s insane secret terror evidence (March 2009), Torture taints all our lives (published in the Guardian’s Comment is free), Britain’s Guantánamo: Calling For An End To Secret Evidence, Five Stories From Britain’s Guantánamo: (1) Detainee Y, Five Stories From Britain’s Guantánamo: (2) Detainee BB, Five Stories From Britain’s Guantánamo: (3) Detainee U, Five Stories From Britain’s Guantánamo: (4) Hussain Al-Samamara, Five Stories From Britain’s Guantánamo: (5) Detainee Z, Britain’s Guantánamo: Fact or Fiction? and URGENT APPEAL on British terror laws: Get your MP to support Diane Abbott’s Early Day Motion on the use of secret evidence (all April 2009), and Taking liberties with our justice system and Death in Libya, betrayal in the West (both for the Guardian), Law Lords Condemn UK’s Use of Secret Evidence And Control Orders (June 2009), Miliband Shows Leadership, Reveals Nothing About Torture To Parliamentary Committee (June 2009), Britain’s Torture Troubles: What Tony Blair Knew (June 2009), Seven years of madness: the harrowing tale of Mahmoud Abu Rideh and Britain’s anti-terror laws, Would you be able to cope?: Letters by the children of control order detainee Mahmoud Abu Rideh, Control order detainee Mahmoud Abu Rideh to be allowed to leave the UK (all June 2009), Testing control orders and Dismantle the secret state (for the Guardian), UK government issues travel document to control order detainee Mahmoud Abu Rideh after horrific suicide attempt (July 2009), Secret evidence in the case of the North West 10 “terror suspects” (August 2009), Letting go of control orders (for the Guardian, September 2009), Another Blow To Britain’s Crumbling Control Order Regime (September 2009), UK Judge Approves Use of Secret Evidence in Guantánamo Case (November 2009), Calling Time On The Use Of Secret Evidence In The UK (December 2009), Compensation for control orders is a distraction (for the Guardian, January 2010), Control Orders Take Another Blow: Libyan Cartoonist Freed (Detainee DD) (January 2010).

Judges Restore Damning Passage on MI5 to the Binyam Mohamed Torture Ruling

Binyam Mohamed in July 2009On February 10, the Court of Appeal brought to an end an 18-month campaign by foreign secretary David Miliband to prevent the publication of a short summary, prepared by two High Court judges, explaining how US agents had subjected the British resident Binyam Mohamed to what was described as “at the very least cruel, inhuman and degrading treatment,” and had provided this information to their British counterparts.

This was a major step towards holding government officials accountable for complicity in torture, but when a letter from Jonathan Sumption QC, acting for the government, was accidentally released to the media, it became apparent that, at Sumption’s request, a paragraph in the ruling, written by Lord Neuberger, the Master of the Rolls, had been removed. The paragraph in question was severely critical of the trustworthiness of the Security Services, and Sumption was concerned that it was “likely to receive more public attention than any other parts of the judgments.”

In a ruling today (PDF), the judges restored the paragraph, although they made it clear that no one had acted improperly, and that the government was perfectly entitled to ask for changes to be made to what was, at the time, a draft judgment. The judges wrote that they were concerned that “a damaging myth may develop that in this case a Minister of the Crown, or counsel acting for him, was somehow permitted to interfere with the judicial process. This did not happen, and it is critical to the integrity of the administration of justice that if any such misconception may be taking root is should be eradicated.”

Nevertheless, Lord Neuberger decided to restore his original paragraph, explaining that, although “Mr. Sumption’s concerns about the first draft paragraph 168 were justified,” these concerns were “to a significantly more limited extent than I had initially thought,” and that “it was right to revert to the first draft of paragraph 168.”

The restored paragraph is reproduced below, and the full, amended ruling can be found here:

168. Fourthly, it is also germane that the Security Services had made it clear in March 2005, through a report from the Intelligence and Security Committee, that “they operated a culture that respected human rights and that coercive interrogation techniques were alien to the Services’ general ethics, methodology and training” (paragraph 9 of the first judgment), indeed they “denied that [they] knew of any ill-treatment of detainees interviewed by them whilst detained by or on behalf of the [US] Government” (paragraph 44(ii) of the fourth judgment).

Yet, in this case, that does not seem to have been true: as the evidence showed, some Security Services officials appear to have a dubious record relating to actual involvement, and frankness about any such involvement, with the mistreatment of Mr Mohamed when he was held at the behest of US officials. I have in mind in particular witness B [the British agent who visited Mohamed while he was being held in Pakistan, under US supervision, in May 2002], but the evidence in this case suggests that it is likely that there were others. The good faith of the Foreign Secretary is not in question, but he prepared the certificates partly, possibly largely, on the basis of information and advice provided by Security Services personnel.

Regrettably, but inevitably, this must raise the question whether any statement in the certificates on an issue concerning the mistreatment of Mr Mohamed can be relied on, especially when the issue is whether contemporaneous communications to the Security Services about such mistreatment should be revealed publicly. Not only is there some reason for distrusting such a statement, given that it is based on Security Services’ advice and information, because of previous, albeit general, assurances in 2005, but also the Security Services have an interest in the suppression of such information.

Responses to the restoration of the paragraph were swift. Liberal Democrat foreign affairs spokesman Ed Davey said, “The implication that David Miliband had the wool pulled over his eyes is deeply embarrassing for the foreign secretary. However, the suggestion that he acted in good faith means the real questions need to be answered by others in Government. Did former Foreign Secretary Jack Straw sign off on the ‘coercive techniques’ referred to in the judgment?” Davey concluded by calling for an inquiry. “The suggestion that there were others in the security services involved in unacceptable practices makes the need for a full judicial inquiry irrefutable,” he said.

Cori Crider, the legal director of Reprieve, which has represented Binyam Mohamed since he was in Guantánamo, said, “The sun shone on open justice today. Throughout this process the judges have shown the utmost integrity and concern for the public interest — one hopes the UK justices’ brethren across the sea are taking notes.”

Kate Allen, the director of Amnesty International UK, also spoke out. “This whole affair has been bedevilled by attempts to block the truth about torture ever getting out,” she said, adding, “Today is another small victory against those who would like to keep these matters shrouded in darkness.”

To this I would add that the judges’ questions about the Security Services’ “dubious record” with regard to “frankness” concerning Binyam Mohamed should prompt a close examination of a story that emerged last year — but was little noticed at the time — indicating that the British government and the Security Services lied about not knowing what happened to Binyam Mohamed after his detention in Pakistan, when he was rendered by the CIA to Morocco.

This was outside the scope of the judicial review that led, finally, to the ruling by the Court of Appeal, but, as I explained in a series of articles last year — “UK Government Lies Exposed; Spy Visited Binyam Mohamed In Morocco,” “Government Bans Testimony On Binyam Mohamed And The British Spy,” and “What The British Government Knew About The Torture Of Binyam Mohamed” — it involves a Moroccan-born informer (a British resident identified as witness A), further revelations about witness B, revelations about unacknowledged visits to Mohamed while he was held in Morocco, where he was brutally tortured, and lies about the duration of the intelligence-sharing relationship between the US and the UK regarding Mohamed.

It’s time, I think, for another can of worms to be opened up to scrutiny.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

Cross-posted on The Public Record and Uruknet.

For other articles relating to Binyam Mohamed, see the following: Urgent appeal for British resident Binyam Mohamed, “close to suicide” in Guantánamo (December 2007), Guantánamo: Torture victim Binyam Mohamed sues British government for evidence (May 2008), Binyam Mohamed’s letter from Guantánamo to Gordon Brown (May 2008), Guantánamo trials: critical judge sacked, British torture victim charged (June 2008), Binyam Mohamed: UK court grants judicial review over torture allegations, as US files official charges (June 2008), Binyam Mohamed’s judicial review: judges grill British agent and question fairness of Guantánamo trials (August 2008), High Court rules against UK and US in case of Guantánamo torture victim Binyam Mohamed (August 2008), In a plea from Guantánamo, Binyam Mohamed talks of “betrayal” by the UK (September 2008), US Justice Department drops “dirty bomb plot” allegation against Binyam Mohamed (October 2008), Meltdown at the Guantánamo Trials (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), A History of Music Torture in the “War on Terror” (December 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), British torture victim Binyam Mohamed to be released from Guantánamo (January 2009), Don’t Forget Guantánamo (February 2009), The Betrayal of British Torture Victim Binyam Mohamed (February 2009), Hiding Torture And Freeing Binyam Mohamed From Guantánamo (February 2009), Binyam Mohamed’s Coming Home From Guantánamo, As Torture Allegations Mount (February 2009), Binyam Mohamed’s statement on his release from Guantánamo (February 2009), Who Is Binyam Mohamed? (February 2009), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009), Guantánamo, Bagram and the “Dark Prison”: Binyam Mohamed talks to Moazzam Begg (March 2009), Obama’s First 100 Days: Mixed Messages On Torture (May 2009), UK Government Lies Exposed; Spy Visited Binyam Mohamed In Morocco (May 2009), Daily Mail Pulls Story About Binyam Mohamed And British Spy (May 2009), Government Bans Testimony On Binyam Mohamed And The British Spy (May 2009), More twists in the tale of Binyam Mohamed (in the Guardian, May 2009), Outsourcing torture to foreign climes (in the Guardian, May 2009), Binyam Mohamed: Was Muhammad Salih’s Death In Guantánamo Suicide? (June 2009), Miliband Shows Leadership, Reveals Nothing About Torture To Parliamentary Committee (June 2009), US Torture Under Scrutiny In British Courts (July 2009), Former prisoners launch the Guantánamo Justice Centre in London (August 2009), What The British Government Knew About The Torture Of Binyam Mohamed (August 2009), Former Guantánamo Prisoner Binyam Mohamed Speaks (Video) (September 2009), UK Judges Order Release Of Details About The Torture Of Binyam Mohamed By US Agents (October 2009), UK Judge Approves Use of Secret Evidence in Guantánamo Case (November 2009), UK Judges Compare Binyam Mohamed’s Torture To That Of Abu Zubaydah (November 2009).

On Torture, New York Times Calls for Bush Officials to be Held to Account

The New York Times buildingIn a principled editorial on Wednesday, the New York Times responded to the internal Justice Department report on the conduct of lawyers in the Office of Legal Counsel, in which the authors’ findings — that John Yoo and Jay Bybee were guilty of “professional misconduct”, and should be referred to their respective bar associations for disciplinary action — were watered down by David Margolis, a veteran DoJ lawyer, so that both men were, instead, merely reprimanded for exercising “poor judgment.”

As I explained in my own article on the report, “poor judgment” is not a valid explanation for the work of lawyers, entrusted with providing impartial advice to the Executive branch, who, instead, shamelessly twisted the law out of shape in an effort to redefine torture and to approve its use by the CIA and the US military.

I’m pleased to report that the New York Times’ editors have a similar view, recognizing that Margolis’ primary excuse on Yoo and Bybee’s behalf — “that everyone was frightened after Sept. 11, 2001, and that they were in a hurry” — is risible, and encouraging Attorney General Eric Holder to “expand the investigation into ‘rogue’ interrogators he initiated last year to include officials responsible for facilitating torture.” As the editors conclude, “The quest for real accountability must continue. The alternative is to leave torture open as a policy option for future administrations.”

This is in marked contrast, it should be noted, to a disgraceful editorial in the Washington Post the day before, which commended Margolis for having “correctly and courageously overturned a skewed recommendation by the department’s Office of Professional Responsibility that the lawyers be referred to their respective bar associations for disciplinary action.”

The Times’ editorial is posted below, and those who share this crucial point of view are encouraged to check out the Times’ website, where there are many constructive comments.

The Torture Lawyers
New York Times editorial, February 24, 2010

Is this really the state of ethics in the American legal profession? Government lawyers who abused their offices to give the president license to get away with torture did nothing that merits a review by the bar?

A five-year inquiry by the Justice Department’s ethics watchdogs recommended a disciplinary review for the two lawyers who produced the infamous torture memos for former President George W. Bush, but they were overruled by a more senior Justice Department official.

The original investigation found that the lawyers, John Yoo and Jay Bybee, had committed “professional misconduct” in a series of memos starting in August 2002. First, they defined torture so narrowly as to make it almost impossible to accuse a jailer of torturing a prisoner, and they finally concluded that President Bush was free to ignore any law on the conduct of war.

The Justice Department’s Office of Professional Responsibility said appropriate bar associations should be asked to look at the actions of Mr. Yoo, who teaches at the University of California, Berkeley, and Mr. Bybee, who was rewarded for his political loyalty with a lifetime appointment to the federal bench. It was a credible accounting, especially since some former officials, like Attorney General John Ashcroft, refused to cooperate and e-mails from Mr. Yoo were mysteriously missing.

But the more senior official, David Margolis, decided that Mr. Yoo and Mr. Bybee only had shown “poor judgment” and should not be disciplined. Mr. Margolis did not dispute that Mr. Yoo and Mr. Bybee mangled legal reasoning and produced work that ultimately was repudiated by the Bush administration itself. He criticized the professional responsibility office’s investigation on procedural grounds and excused Mr. Yoo and Mr. Bybee by noting that everyone was frightened after Sept. 11, 2001, and that they were in a hurry.

Americans were indeed frightened after Sept. 11, and the Bush administration was in a great rush to torture prisoners. Responsible lawyers would have responded with extra vigilance, especially if, like Mr. Yoo and Mr. Bybee, they worked in the Justice Department’s Office of Legal Counsel. When that office renders an opinion, it has the force of law within the executive branch. Poor judgment is an absurdly dismissive way to describe giving the green light to policies that have badly soiled America’s reputation and made it less safe.

As the dealings outlined in the original report underscore, the lawyers did not offer what most people think of as “legal advice.” Mr. Yoo and Mr. Bybee were not acting as fair-minded analysts of the law but as facilitators of a scheme to evade it. The White House decision to brutalize detainees already had been made. Mr. Yoo and Mr. Bybee provided legal cover.

We were glad that the leaders of the House and Senate Judiciary Committees, Representative John Conyers Jr. and Senator Patrick Leahy, committed to holding hearings after the release of the Justice Department documents.

The attorney general, Eric Holder Jr., should expand the investigation into “rogue” interrogators he initiated last year to include officials responsible for facilitating torture. While he is at it, Mr. Holder should assign someone to look into the disappearance of Mr. Yoo’s e-mails.

The American Bar Association should decide whether its rules are adequate for deterring and punishing ethical failures by government lawyers.

The quest for real accountability must continue. The alternative is to leave torture open as a policy option for future administrations.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

US Military Lawyer: Kuwait Needs to Speak Up on Guantánamo

Lt. Col. Barry WingardOne of the heroes of the Military Commissions at Guantánamo is Lt. Col. Barry Wingard, who has served for 26 years in the US military, works as a public defender in Pittsburgh, and is also a Judge Advocate General (JAG) in the Air Force. A veteran of the conflicts in Bosnia and Iraq, he was introduced to the public in May 2009, in a profile in the Pittsburgh Post-Gazette, entitled, “Military attorneys risk careers to criticize practices at Guantánamo,” which also profiled Lt. Col. Darrel Vandeveld.

A former prosecutor and “true believer” in the Commissions, Lt. Col. Vandeveld resigned spectacularly in September 2008, after discovering, as the Post-Gazette profile explained, that, although he had expected to work within a familiar military justice system, what he found instead was “a chaotic environment in which cases were tainted by questionable interrogation techniques and evidence was scattered, missing, of questionable origin or simply unavailable.”

Lt. Col. Wingard’s experiences were similar. Although he had “prosecuted cases in 110-degree courtrooms in Iraq, investigated war crimes in Bosnia and acquired years of experience” as an officer in the Air Force Reserve JAG corps, and had signed on expecting to encounter the “worst of the worst,” it was the system itself that was “the worst of the worst.”

Fayiz al-Kandari, photographed at Guantanamo in 2009Assigned to the defense office, rather than the prosecutors, as he had hoped, Lt. Col. Wingard discovered, when assigned the case of Fayiz al-Kandari, a Kuwaiti who was put forward for a trial by Military Commission in November 2008, that the case against his client was non-existent. As he explained in May last year, “There simply is no evidence other than he is a Muslim in Afghanistan at the wrong time, other than double and triple hearsay statements, something I have never seen as justification for incarceration, let alone eight years.” Last October, with assistance from Lt. Col. Wingard, I wrote a detailed article about Fayiz al-Kandari, entitled, “Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari.”

In the nine months since the Post-Gazette article was published, Lt. Col. Wingard has become a persistently outspoken opponent of the Commissions, and an equally persistent defender of his client. He now has a blog at TPM (Talking Points Memo), which I urge you to check out and support, and yesterday he had the following op-ed published in Kuwait Times:

Kuwait Needs to Speak Up on Guantánamo
By Barry Wingard, Kuwait Times, February 25, 2010

With the Obama administration’s January 2010 deadline for closing Guantánamo Bay now in the past, two Kuwaiti detainees remain imprisoned in Cuba where they have been held without trial for more than eight years. While the US government is primarily responsible for the suffering these Kuwaitis have endured, the Government of Kuwait is also responsible for allowing the injustice to continue.

As is universally recognized, Kuwait is a close and faithful ally of the United States. The United States liberated Kuwait following the Iraqi invasion of 1990. More recently, Kuwait provided critical support as a staging area for the US military during the Iraq War.

To be fair, the Emir of Kuwait has sought the return of the Kuwaiti detainees in face-to-face meetings with both President Bush and President Obama. The Emir has also sent a letter to the US government requesting that all Kuwaiti citizens detained at Guantánamo be returned. Other Kuwaiti officials have repeated that request to their counterparts in the US government.

The Government of Kuwait has also fulfilled all of the conditions the US government established for the return of the Kuwaiti detainees. Perhaps most significantly, Kuwait established a state-of-the-art rehabilitation center that provides access to education, medical care, group discussions, and physical exercise to help detainees recover from their long ordeal in Guantánamo.

But while Kuwait has clearly made an effort to secure the return of its citizens, these efforts have not been strong enough. Contrast Kuwait’s quiet, diplomatic approach with that of Saudi Arabia, which openly criticized the US government and demanded its citizens back. As a result, more than 100 Saudi detainees were transferred from Guantánamo to Saudi Arabia.

Despite the close ties between the United States and Kuwait, the United States does not appear eager to send Kuwaitis home. For example, on September 17, 2009, a US federal judge ordered the immediate release of Fouad Al Rabiah, an innocent Kuwaiti who was interrogated in “enhanced” ways at the hands of his US captors.

Rather than immediately returning him to Kuwait, the US government delayed and stalled Mr. Al Rabiah’s transfer, forcing his attorneys to ask that US officials be held in contempt of court. It was not until December 9, 2009, almost three months after the judge’s order, that Mr. Al Rabiah was finally released from Guantánamo and returned to Kuwait. Still, even with a Federal judge’s opinion that the United States had no authority to detain Mr. Al Rabiah, the Kuwaiti government refused to demand his return.

If the United States was reluctant to release a demonstrably innocent man, it most certainly will be in no rush to repatriate my client, Fayiz Al Kandari, whose habeas case is still pending, despite Fayiz having spent more than eight years in Guantánamo.

At this critical time, the United States is turning its back on its faithful ally. The United States may be legitimately reluctant to return detainees to countries such as Tunisia or Libya where former prisoners may face further torture or persecution. But there are no such concerns about Kuwait. To the contrary, Kuwait treats its returned detainees humanely and helps reintegrate them into society with a rehabilitation program modeled after the successful Saudi program.

No one likes to tell their friends they are wrong. But there comes a time in every relationship when a little push back is necessary. And the friendship survives. Now is the time for the Government of Kuwait to take a stand. It might be outside its comfort zone, but it is the right thing to do for its two citizens still imprisoned at Guantánamo.

Note: The other Kuwaiti held at Guantánamo is Fawzi al-Odah, who lost his habeas corpus petition last August. As I explained at the time, Judge Colleen Kollar-Kotelly agreed with the government that it was “more likely than not” that he “became part of Taliban and al-Qaeda forces in Afghanistan,” even though her ruling “was based on a dubious assemblage of information that relied more on inconsistencies in al-Odah’s account of his activities than it did on anything resembling concrete evidence, as she herself admitted, when she wrote that there were ‘significant reasons why the Government’s proffered evidence may not be accurate or authentic.’”

For more articles on Fayiz al-Kandari and Barry Wingard, see the archive at The Political Carnival.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

Four prisoners freed from Guantánamo: three in Albania, one in Spain

A prisoner at GuantanamoOn Wednesday, four prisoners were released from Guantánamo: an Egyptian, a Libyan and a Tunisian arrived in Albania, and a Palestinian arrived in Spain. All four had been cleared by military review boards at Guantánamo under the Bush administration, and had then been cleared by President Obama’s interagency Task Force, but, like dozens of prisoners in Guantánamo, they could not be repatriated because of fears that they would be tortured if returned to their home countries or subjected to other ill-treatment, or because they were effectively stateless.

The Spanish government, which declared last week that it would take up to five cleared prisoners from Guantánamo, announced that the first of these men arrived in Spain on Wednesday. The Spanish Interior Minister Alfredo Perez Rubalcaba told reporters that the man is Palestinian, but would not give his name, citing privacy concerns. According to the press agency dpa, Rubalcaba explained that he “would get a residence permit, the possibility to work and freedom of movement in Spain, though Guantánamo prisoners taken by European countries could not leave those countries.” He added that Spain would only accept prisoners “with no criminal charges in the European Union, the United States or their countries of origin.”

As well as accepting the Palestinian, the newspaper Periódico reported that other prisoners, “believed to include a Syrian and a Yemeni citizen,” were “expected to arrive in Spain shortly,” adding that they will be “placed in different locations under the care of NGOs,” and will also be “placed under surveillance not only to protect the Spanish public, but also to protect the individuals from al-Qaeda reprisals over their possible revelations to US intelligence services.”

Cementing its role as America’s closest ally when it comes to clearing up “the mess” that is Guantánamo (to quote President Obama’s words from last May), the Albanian Ministry of Interior announced on Wednesday that it had accepted three cleared prisoners, who could not be repatriated because of the fears outlined above. Albania has now taken eleven cleared prisoners from Guantánamo, having accepted eight in 2006, when no other country in the world was prepared to do so (five Uighurs, an Algerian, an Egyptian and an ethnic Uzbek from the former Soviet Union).

Announcing the arrival of three prisoners in Albania, the Ministry of the Interior stated, “This transfer is a result of the engagement of the Albanian government in backing the Obama administration’s policy to close the detention center in Guantánamo and transfer prisoners to friendly and safe third countries.” In a press release, the US Justice Department identified the three men as: Abdul Rauf Omar Mohammad Abu al-Qusin, a Libyan; Sharif Fati Ali al-Mishad, an Egyptian; and Saleh bin Hadi Asasi, a Tunisian.

Their stories, like those of the majority of the 584 prisoners released from Guantánamo, demonstrate, yet again, that, behind the blustering rhetoric of former Vice President Dick Cheney and his swarming acolytes, the majority of the men held at Guantánamo had no involvement with terrorism, and that a disturbingly large number of them were innocent men seized by mistake.

Of the three men rehoused in Albania, for example, one was a businessman, living in Europe, who had traveled to Afghanistan to provide humanitarian aid, one was a veteran of Afghanistan’s war against the Soviet Union, who had married an Afghan woman, and was seized in a house in Lahore, Pakistan, far from the battlefields of Afghanistan, and the other man, as was common in 2001, before the 9/11 attacks, had been persuaded to travel to Afghanistan to help the Taliban defeat their enemies, the Northern Alliance, in a long-running civil war that had nothing to do with al-Qaeda or international terrorism, and had not raised a finger against US forces.

Sherif El-Mashad: An Egyptian businessman and humanitarian aid worker

Sherif El-MashadSharif al-Mishad (also identified as Sherif El-Mashad) is an Egyptian, born in 1976. A talented athlete and carpenter in his youth, he enrolled in a technical school to learn woodworking, cabinetmaking, painting, tiling, plumbing and roofing, and, after graduating, spent three years working in Sinai at some of Egypt’s largest beach resorts. There, he began to learn Italian from the tourists, and in 1997, after his father died, decided to travel to Italy, to stay with his uncle, an Italian citizen who lived in Como, in the hope of finding better paid work to provide for the family.

Once he had secured a work permit, he worked in a restaurant and a bar, but soon found that his skills as a craftsman would pay better. After working as an apprentice with two painting companies, he obtained a license from the Chamber of Commerce in Como to work as an independent contractor, and set up his own company, “Sherif El-Mashad,” running the business out of his home.

In the spring of 2001, he met a wealthy Kuwaiti businessman, who encouraged him to travel to Afghanistan to do charity work. As he explained to his lawyers, at the London-based legal action charity Reprieve, he saw this as “a dual opportunity,” allowing him not only to network with a well-connected businessman, but also to help those less fortunate than himself by distributing humanitarian aid — food, clothes, and blankets. Providing an analogy to his lawyers, he explained that the plan was akin to “organizing a charity gala with a prospective business partner.”

As a result of this meeting, El-Mashad booked a round-trip ticket, intending to stay in Afghanistan for a couple of months, before returning home to work. It was obvious that he had no intention of staying any longer, because, as his lawyers, explained, two days before he left Italy in July 2001, he had billed a customer almost €15,000 for painting services to be collected on his return.

His mother, who is the deputy principal of a school in Egypt, explained in 2006 how she had advised her son against traveling to Afghanistan. “I never wanted him to go on that trip”, she said, “because I knew that the region was unstable and so many events were taking place there, but he was stubborn. He was very kind and grateful to his family, though.” A week after his arrival, according to his mother, “he called his uncle, who lives in Italy, and told him that he arrived and asked him to reassure me.”

After that, he effectively disappeared off the face of the earth, until his uncle called to say that he had received a postcard from Guantánamo (via the International Committee of the Red Cross), in which he wrote that “he had been visiting a friend in Afghanistan and subsequently enlisted in a ‘rescue organization’ that offered ‘humanitarian aid to the Afghani people.’” Although he ended up staying in Afghanistan for longer than he intended, helping his friend, who, as he explained in Guantánamo, “passed out donations to help the Afghani people,” they remained safe in Kabul until November 2001, when, with the Northern Alliance approaching, and rumors spreading that Arabs were no longer safe, they set off for the Iranian border, intending to return home. As he also explained, “I had a valid visa to Iran and a return ticket with an Iranian airline.” However, when they discovered that the border crossing was closed, they realized that they would have to leave via Pakistan, but were detained by Pakistani soldiers after crossing the border and arriving in a small village. El-Mashad then spent three weeks in a Pakistani prison in Peshawar, and was then flown to the US prison at Kandahar airport, where he spent several more months before being transferred to Guantánamo.

There seems to be no reason to dispute this story, and El-Mashad clearly explained it at length to his interrogators in Guantánamo, telling them how he traveled to Kabul, how he met up with the Kuwaiti businessman, how he “heard of the attacks in America while listening to the radio,” how he and “all who were present with him were sorrowful and none of them were happy,” and how he fled from Afghanistan and was seized.

However, once he was in US custody, he became the victim of patently false allegations made by other prisoners, either through coercion or torture, or through the promise of preferential treatment, of the kind that are disturbingly familiar to those who have studied closely the rulings in the prisoners’ habeas corpus petitions over the last year and a half.

One of these allegations was made by a prisoner who was rescued by US forces from a prison in Afghanistan, and then transported to Guantánamo, even though he had been imprisoned as a spy by al-Qaeda and had been subjected to horrendous torture. This prisoner claimed that, in early 2000, El-Mashad  “participated in torturing him through beatings and electric shocks”, even though, as El-Mashad pointed out, he was in Italy in early 2000 and had the documents to prove it.

He also told his lawyers that, in the early days of his imprisonment, “I was first accused of aiding the Arabs in Bosnia. Then they changed the accusation that I was there just for training. In both cases, it’s impossible that I was in Bosnia at the time of the war in 1991, simply because at that date I was 14 years old! From 1991-1997 (the duration of the Bosnian war) I was studying at my school and I never left my country to anywhere. I have the proving documents.” He also explained that another set of false allegations came about because the US authorities mistook him for a significant figure in al-Qaeda, which led to a number of other false allegations, including claims that he trained recruits in urban warfare at a military training camp. Another false allegation, made by an unnamed “source”, was that he sold videotapes of the bombing, in 2000, of the USS Cole.

“Throughout my life, I was never involved in any banned or illegal activities by any means,” he told Cori Crider of Reprieve in August 2008, during his first visit with a lawyer from the legal action charity, adding, “I don’t have any file with any police office or any bad record with any authority.” He also explained that Italian agents had visited him in Guantánamo and had confirmed that there was no case against him. “They told me they knew I was innocent and they would ask the United States to release me,” he said, adding, “My case is very clear. I have physical evidence to defend myself against these charges.”

Abdul Ra’ouf al-Qassim: A Libyan seized in Pakistan

Abdul Ra'ouf al-Qassim's wife, Rahima, and daughter KhiriaAbdul Rauf al-Qusin (also identified as Abdul Ra’ouf al-Qassim, and named in court documents as Abu Abdul Raouf Zalita) is a Libyan, born in 1965, who was cleared for release from Guantánamo in 2006. A soldier in the Libyan army from 1983 to 1989, he had then deserted, traveling to Afghanistan “to immigrate and to start a new life,” as he explained to his military review board in Guantánamo in May 2005. After fighting with the mujahideen until 1993, when the last remnants of the Soviet regime fell, he “traveled back and forth between Pakistan and Afghanistan” — at one point studying at university in Quetta — and also met and married an Afghan woman, Rahima, with whom he had a daughter, Khiria, who has spent the whole of her young life without her father.

Al-Qassim was captured in Lahore in May 2002, at the house of a Pakistani, after escaping from war-torn Afghanistan with his pregnant wife, but although it was clear that he had not taken up arms against the Americans, it was far less clear that he would not be regarded as a threat by the government of his home country. At his review in 2005, he explained (via a military officer assigned to him instead of a lawyer) that he had received military training at two Libyan camps in Afghanistan, but only because he was living there, and also admitted that he had joined the Libyan Islamic Fighting Group — exiled opponents of the Gaddafi regime — but only “out of desperation — he was broke, had no place to go, was hungry, unemployed and had no way to support himself.” He added that his family “did not receive monetary support from the [LIFG], but he received food, shelter and an allowance for clothes.” He also agreed with previous statements he had made: that he “did not believe in violence,” and that he “angrily defined [al-Qaeda’s] leadership and members as ‘savages’ who twist the meaning of Islam, thereby hurting all Muslims.”

Although al-Qassim stated that a Libyan delegation, who visited Guantánamo in 2004 (and were actually flown there by the CIA), told him that they “knew he was with the Libyan Islamic Fighting Group only by name,” that he was “obligated to be with them,” and that they would “take care of him,” he repeatedly told his Assisting Military Officer that he was “afraid of returning to Libya.” His AMO reported, “He said he does not want to go to Libya because he feels he cannot trust them and because they put people in prison for no reason. He said he feels that if he returns to Libya, even after being released by the United States, he would be sent back to prison.” Such was his concern that the Presiding Officer noted, “For the record, make sure that we put in our report that the Detainee is afraid of returning to Libya.”

In spite of this, the US government sought to repatriate al-Qassim, and his lawyers — at the Center for Constitutional Rights — fought a legal battle for over three years to prevent his forcible return. In a court filing in December 2008 (PDF), they noted his ongoing legal limbo:

The Government has cleared him for transfer from Guantánamo, and has twice attempted to repatriate him to Libya, the country from which he fled to Afghanistan more than a decade ago in order to avoid religious persecution. Petitioner has a credible fear that he will be subject to imprisonment, torture and possible summary execution if he is forcibly returned to Libya, and he has resisted all attempts to repatriate him to that country. He remains detained in Camp 6, an isolation facility, more than six years after his detention and nearly two years after the Government’s first notice of intent to transfer him out of Guantánamo.

Saleh Sassi: An insignificant adventurer

Saleh SassiThe third man released in Albania, Saleh bin Hadi Asasi (more commonly known as Saleh Sassi, and also identified in Guantánamo as Sayf bin Abdallah) is a Tunisian, born in 1973, who, like the two men described above, was cleared for release by a military review board under the Bush administration, and by President Obama’s Task Force.

A welder and a skilled laborer, he moved to Italy in 1998, hoping to find work and a better life, and settled in Turin, where he secured a work permit and found employment in the construction industry. Apparently persuaded to travel to Afghanistan during a vacation from work, he reportedly spent some time at a mountain outpost north of Kabul, and was later wounded when a truck he was traveling in was shot at. Hospitalized, first in Kabul, and then in Khost, he was transported to the Pakistani border, where he was seized by the Pakistani authorities.

In Guantánamo, as his lawyers at Reprieve noted, he was often held “in brutal conditions.” The vast majority of his imprisonment was spent in isolation, which caused him to suffer clinical depression. In discussions with his lawyers, he explained that his imprisonment was “a long and unending nightmare.” He was also visited by teams of foreign interrogators — both Italian and Tunisian. In late 2002, Tunisian agents came to Guantánamo and left no doubt about what awaited him if he were to be returned to Tunisia, which included “water torture in the barrel.”

What now, and what next?

With the release of these four men, 188 prisoners remain in Guantánamo, but while the Albanian and Spanish governments are to be congratulated for offering homes for men who would otherwise rot in Guantánamo for the rest of their lives, the Italian government, which is only interested in taking prisoners who can be put on trial in Italy (as demonstrated with the transfer of two Tunisians in December) ought to be ashamed that it did not accept Sherif El-Mashad, who was so clearly seized by mistake, and who, with family in Italy and viable skills that he could use once more, has, essentially, been betrayed by the country which he once called home.

Above all, though, the greatest shame must settle on the United States, which still refuses to accept its own responsibility to provide new homes for cleared prisoners who cannot be repatriated. The exact number of prisoners in this category is difficult to establish, because the Obama administration has not provided details of the nationalities of these prisoners (who now number 106). When the Task Force announced its final decisions about the prisoners last month, it was reported that around 60 of the 106 are Yemenis. These men will not be released until the Obama administration finds some spine, having capitulated to fearmongering about Yemen after the failed plane bomb at Christmas, and suspending all further releases to Yemen. Back in October, it was reported that three others are Saudis (who, in theory, could be returned tomorrow), which means that around 42 of the cleared prisoners are awaiting new homes.

Two of these, who have been offered a new home in Switzerland, are amongst the remaining seven Uighurs, another is an Uzbek who has been offered a new home in Latvia, and three others (plus one of the Yemenis) are, as mentioned above, expected to arrive in Spain shortly. However, that still leaves 36 men waiting for new homes, and it seems probable that the countries of Europe, which, before Wednesday, had taken 12 cleared prisoners (with Bermuda and Palau also taking another ten of the Uighurs), will run out of largesse before all 36 are rehoused, leaving the US government — and its people — with a stark choice: hold them forever, or, as was planned last April (before Obama scuppered the proposal), bring some of them to live in the United States.

This is not only the right thing to do; it will also demonstrate to the American people — and to its surplus of hysterical pundits and politicians — that not everyone who was held at Guantánamo was a terrorist, bent on the destruction of the United States. Why is it, I wonder, that Europeans — in Albania, Belgium, France, Hungary, Ireland, Portugal, Slovakia, Spain and Switzerland — can understand that between 90 and 95 percent of the men held at Guantánamo had no connection to terrorism, and that many of these men are still imprisoned, awaiting an end to their long and lawless ordeal, but Americans cannot?

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

As published on the Huffington Post and Antiwar.com. Cross-posted on AlterNet, Common Dreams, The Public Record, Axis of Logic.

See the following for articles about the 142 prisoners released from Guantánamo from June 2007 to January 2009, and the 48 prisoners released from February 2009 to January 2010, whose stories are covered in more detail than is available anywhere else –- either in print or on the Internet –- although many of them, of course, are also covered in The Guantánamo Files: June 2007 –- 2 Tunisians, 4 Yemenis (here, here and here); July 2007 –- 16 Saudis; August 2007 –- 1 Bahraini, 5 Afghans; September 2007 –- 16 Saudis; September 2007 –- 1 Mauritanian; September 2007 –- 1 Libyan, 1 Yemeni, 6 Afghans; November 2007 –- 3 Jordanians, 8 Afghans; November 2007 –- 14 Saudis; December 2007 –- 2 Sudanese; December 2007 –- 13 Afghans (here and here); December 2007 –- 3 British residents; December 2007 –- 10 Saudis; May 2008 –- 3 Sudanese, 1 Moroccan, 5 Afghans (here, here and here); July 2008 –- 2 Algerians; July 2008 –- 1 Qatari, 1 United Arab Emirati, 1 Afghan; August 2008 –- 2 Algerians; September 2008 –- 1 Pakistani, 2 Afghans (here and here); September 2008 –- 1 Sudanese, 1 Algerian; November 2008 –- 1 Kazakh, 1 Somali, 1 Tajik; November 2008 –- 2 Algerians; November 2008 –- 1 Yemeni (Salim Hamdan) repatriated to serve out the last month of his sentence; December 2008 –- 3 Bosnian Algerians; January 2009 –- 1 Afghan, 1 Algerian, 4 Iraqis; February 2009 — 1 British resident (Binyam Mohamed); May 2009 — 1 Bosnian Algerian (Lakhdar Boumediene); June 2009 — 1 Chadian (Mohammed El-Gharani), 4 Uighurs to Bermuda, 1 Iraqi, 3 Saudis (here and here); August 2009 — 1 Afghan (Mohamed Jawad), 2 Syrians to Portugal; September 2009 — 1 Yemeni, 2 Uzbeks to Ireland (here and here); October 2009 — 1 Kuwaiti, 1 prisoner of undisclosed nationality to Belgium; October 2009 — 6 Uighurs to Palau; November 2009 — 1 Bosnian Algerian to France, 1 unidentified Palestinian to Hungary, 2 Tunisians to Italian custody; December 2009 — 1 Kuwaiti (Fouad al-Rabiah); December 2009 — 2 Somalis, 4 Afghans, 6 Yemenis; January 2010 — 2 Algerians, 3 prisoners of undisclosed nationality to Slovakia, 1 unidentified Uzbek to Switzerland.

Torture Whitewash: How “Professional Misconduct” Became “Poor Judgment” in the OPR Report

The seal of the US Justice DepartmentThe long-awaited report by the OPR (the Justice Department’s Office of Professional Responsibility) into the conduct of the lawyers in the OLC (Office of Legal Counsel), regarding their role in approving the use of torture, has finally been published (PDF).

The report largely focuses on two memos dated August 1, 2002, and a third dated March 14, 2003. Widely known as the “torture memos,” these notorious documents sought to redefine torture so that it could be used by the CIA (and by the US military in the March 2003 memo), and the report concludes that the primary author of the memos, John Yoo, an OLC lawyer who is now a law professor at Boalt Hall, the University of California’s School of Law in Berkeley, and the senior official who signed the August 2002 memos, Assistant Attorney General Jay S. Bybee, who is now a judge in the Ninth Circuit Court of Appeals, were guilty of “professional misconduct.”

As the report explained, in no uncertain terms:

Based on the results of our investigation, we concluded that former Deputy AAG John Yoo committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.

We found that AAG Jay Bybee committed professional misconduct when he acted in reckless disregard of his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.

A footnote added, “Pursuant to Department policy, we will notify bar counsel in the States where Yoo & Bybee are licensed” — with the clear sub-text that these notifications would almost certainly lead to both men being disbarred, and that Bybee might find himself impeached. These actions might then have led to the possibility of prosecutions taking place for those who engineered America’s emergence, in the summer of 2002, as a nation that officially sanctioned the use of torture.

Unfortunately, as Newsweek reported three weeks ago, the devastating conclusions of the report — which took four years to complete — were swept aside by Associate Deputy Attorney General David Margolis, who downgraded the report’s conclusions. In a 69-page memo to Attorney General Eric Holder, dated January 5, 2010 (PDF), Margolis, a career official who has worked at the DoJ for 17 years and has a history of shielding officials from allegations of misconduct, asserted that Yoo and Bybee had only shown “poor judgment.” As a result, two slaps on the wrist are all that have emerged from an investigation into one of the darkest periods of modern American history.

This, of course, is disgraceful. One of the techniques approved by Yoo and Bybee was waterboarding, a form of controlled drowning that was referred to by the torturers of the Spanish Inquisition as “tortura del agua.” Even more significantly, both Barack Obama and Attorney General Eric Holder are on record as stating that waterboarding is torture. As I explained in an article last March:

In an interview with ABC News on January 11, [2009,] President-Elect Obama responded to a recent CBS interview with Dick Cheney, in which the then-Vice President had sounded his usual alarms abut the need for “extraordinary” policies to deal with terror suspects, by stating, “Vice President Cheney I think continues to defend what he calls extraordinary measures or procedures and from my view waterboarding is torture. I have said that under my administration we will not torture.”

Two days later, at his confirmation hearing, Eric Holder reinforced Obama’s opinion. Noting, as the New York Times described it, that waterboarding had been used to torment prisoners during the Inquisition, by the Japanese in World War II and in Cambodia under the Khmer Rouge, and adding, “We prosecuted our own soldiers for using it in Vietnam,” he stated unequivocally, “Waterboarding is torture,” and reiterated his opinion [on March 2, 2009], in a speech to the Jewish Council of Public Affairs in Washington. “Waterboarding is torture,” he said again, adding, “My Justice Department will not justify it, will not rationalize it and will not condone it.”

As a result of Margolis’ intervention, however, it now appears that, although torture was clearly authorized, no one is to be held accountable.

Jay S. Bybee and John YooMoreover, although Margolis tried to claim in his memo that it was important to remember that Yoo and Bybee were working to prevent another major terrorist attack, which led him to claim, “Among the difficulties in assessing these memos now over seven years after their issuance is that the context is lost,” this is a pitiful argument. OPR lawyers are obliged to provide objective legal advice to the Executive branch on all constitutional questions, and, as OPR head Mary Patrice Brown explained in an earlier version of the report, “Situations of great stress, danger and fear do not relieve department attorneys of their duty to provide thorough, objective and candid legal advice, even if that advice is not what the client wants to hear.”

Even more significant is Mary Patrice Brown’s reference to “the client.” Although George W. Bush evades scrutiny in the report, former Vice President Dick Cheney is mentioned as putting “great pressure” on the OLC regarding revised memos issued in May 2005, and consultations with Cheney’s Legal Counsel, David Addington, and White House Deputy Counsel Tim Flanigan are mentioned in 2002. It is surely in the context of this relationship between the OLC and the White House that the report’s authors stated, damningly, “We also found evidence that the authors of the Bybee Memo and the Yoo Memo tailored their analysis to reach the result desired by the client.”

Anyone with any doubts regarding how closely Yoo worked with the White House should read Philippe Sands’ book Torture Team, which establishes that, following the 9/11 attacks, a “War Council” of lawyers met regularly to plan and implement the legal strategies they wanted for the “War on Terror” — largely without any outside consultation — and that this “War Council” consisted of just six men: Addington, White House Counsel Alberto Gonzales, Flanigan, Yoo, William J. Haynes II, the Pentagon’s General Counsel, and his deputy, Daniel Dell’Orto.

The report’s authors added that, “In many instances the authors [of the memos] exaggerated or misstated the significance of cited legal authority, failed to acknowledge or fairly present adverse authority, took inconsistent approaches to favor the desired result, and advanced convoluted or frivolous arguments.” They had no hesitation in concluding, as a result, that, when it came to tailoring their advice to a preordained outcome — rather than providing objective advice — Yoo and Bybee “violated their duty” under the OLC’s rules, “to provide a straightforward, candid and realistic assessment of the law.”

This was not all. Elsewhere in the report, the authors also expanded on the “numerous failures of scholarship and analysis,” which resulted in violations of the OLC’s rules. “While it may be that no single one of those failures, considered in isolation, would compel a finding of less than competent representation,” they wrote, “we concluded that the many instances of unsupported arguments, incomplete analysis, failure to discuss adverse authority, and mischaracterization of precedent compelled the conclusion that the authors of the Bybee Memo and the Yoo Memo failed to meet their obligations [under the OLC’s rules] and thus committed misconduct.”

Furthermore, the authors of the report also drew on damning criticisms made by Michael Mukasey, the Attorney General from November 2007 until Bush left office, and by other senior OLC officials, after Yoo and Bybee had left the department: in particular, Jack Goldsmith, the Assistant Attorney General from 2003 to 2004, who attracted the wrath of the White House by ordering the “torture memos” to be withdrawn; Daniel Levin, who served as Acting AAG from 2004 to 2005; and even Stephen Bradbury, the Acting AAG from 2005 to 2007 (and the senior appointed official overseeing the OLC until Bush left office), who managed to escape censure for his own role in the torture program, as the author of three vile memos endorsing “enhanced interrogation” in May 2005. As the authors explained, “Mukasey acknowledged that the Bybee Memo was ‘a slovenly mistake,’ even though he urged us not to find misconduct.” They also stated:

Our view that the memoranda were seriously deficient was consistent with the comments made by some of the former Department officials we interviewed, even though those individuals would not necessarily agree with some of our findings in this matter. Levin stated that when he first read the Bybee Memo, “[I had] the same reaction I think everybody who reads it has — ‘this is insane, who wrote this?’” Jack Goldsmith found that the memoranda were “riddled with error,” concluded that the key portions were “plainly wrong,” and characterized them as a “one-sided effort to eliminate any hurdles posed by the torture law.” Bradbury told us that Yoo did not adequately consider counter arguments in writing the memoranda and that “somebody should have exercised some adult leadership” with respect to Yoo’s section on the Commander-in-Chief powers [a section in which Yoo claimed that the President, as Commander-in-Chief, could override the federal law banning torture].

So what happens next? Both the New York Times and the Washington Post tried to claim at the weekend that the publication of the report spells the end of attempts to hold to account senior Bush administration officials and lawyers who turned American into a “Torture Nation.” The Post called it “the end of a 5-year internal battle” at the Justice Department, and the Times claimed that it “brings to a close a pivotal chapter in the debate over the legal limits of the Bush administration’s fight against terrorism and whether its treatment of Qaeda prisoners amounted to torture.”

This is nonsense, however. Margolis’ intervention may shield Yoo and Bybee in the short term, but he was unable to quash the report’s devastating findings, and it is clear that the DoJ will now find itself under close scrutiny. As soon as the report was issued, Rep. John Conyers (D-Mich.), the Chair of the House Judiciary Committee, who made the documents publicly available as soon as they were provided to him by the DoJ, stated:

For years, Bush administration officials who approved torture and abuse of detainees have hidden behind legal memos issued by the Department of Justice’s Office of Legal Counsel. Today’s report makes plain that those memos were legally flawed and fundamentally unsound. Even worse, it reveals that the memos were not the independent product of the Department of Justice, but were shaped by top officials of the Bush White House. It is nothing short of a travesty that prisoners in US custody were abused and mistreated based on legal work as shoddy as this. It is a blight on our national honor.

The Office of Legal Counsel has a proud tradition of providing independent, high-quality legal advice to the executive branch. Today’s report makes clear that the lawyers who wrote the torture memos did not live up that tradition, and dishonored their office and the entire Department of Justice. While the report concludes that the lawyers did not breach their minimum professional obligations, I certainly hold top lawyers at OLC to a higher standard than that, as all Americans should.

Conyers promised to hold hearings in the near future, but was beaten to it by Sen. Patrick Leahy (D-Vt.), of the Senate Judiciary Committee, who set a date for hearings on Friday (February 26). In a statement, Sen. Leahy explained:

The report from the Office of Professional Responsibility is a condemnation of the legal memoranda drafted by key architects of the Bush administration’s legal policy, including Jay Bybee and John Yoo, on the treatment of detainees. The deeply flawed legal opinions proffered by these former OLC officials created a “golden shield” that sought to protect from scrutiny and prosecution the Bush administration’s torture of detainees in US custody. In drafting and signing these unsound legal analyses, OLC attorneys sanctioned torture, contrary to our domestic anti-torture laws, our international treaty obligations and the fundamental values of this country.

I have serious concerns about the role each of these government lawyers played in the development of these policies. I have said before that if the Judiciary Committee, and the Senate, knew of Judge Bybee’s role in creating these policies, he would have never been confirmed to a lifetime appointment to the federal bench. The right thing to do would be for him to resign from this lifetime appointment.

As a United States Senator, as a former prosecutor, and as an American citizen, I am offended by the premeditated approach taken by former high-ranking officials in the Office of Legal Counsel in constructing the legal underpinnings of seriously flawed national security policies.

Clearly, then, we have not yet heard the end of this story, and unless the United States is to become a country in which torture was authorized, but no one was actually responsible, this is as it should be. It may take years, but those who authorized torture must be held accountable, and claims that cynical lawyers like John Yoo were responsible only for exercising “poor judgment” cannot be allowed to overrule the OPR Report’s far more damaging conclusions.

Note: As well as releasing the final report, “Investigation Into The Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central Intelligence Agency’s Use of ‘Enhanced Interrogation Techniques’ on Terrorist Suspects,” dated July 23, 2009, and Margolis’ memo, the DoJ also released two earlier versions of the report, the first dated December 22, 2008 (PDF) and the second dated March 4, 2009 (PDF), as well as John Yoo’s responses to the second report (PDF) and the final report (PDF), and Jay Bybee’s responses to the second report (PDF) and the final report (PDF).

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation.

For a sequence of articles dealing with the use of torture by the CIA, on “high-value detainees,” and in the secret prisons, see: Guantánamo’s tangled web: Khalid Sheikh Mohammed, Majid Khan, dubious US convictions, and a dying man (July 2007), Jane Mayer on the CIA’s “black sites,” condemnation by the Red Cross, and Guantánamo’s “high-value” detainees (including Khalid Sheikh Mohammed) (August 2007), Waterboarding: two questions for Michael Hayden about three “high-value” detainees now in Guantánamo (February 2008), Six in Guantánamo Charged with 9/11 Murders: Why Now? And What About the Torture? (February 2008), The Insignificance and Insanity of Abu Zubaydah: Ex-Guantánamo Prisoner Confirms FBI’s Doubts (April 2008), Guantánamo Trials: Another Torture Victim Charged (Abdul Rahim al-Nashiri, July 2008), Secret Prison on Diego Garcia Confirmed: Six “High-Value” Guantánamo Prisoners Held, Plus “Ghost Prisoner” Mustafa Setmariam Nasar (August 2008), Will the Bush administration be held accountable for war crimes? (December 2008), The Ten Lies of Dick Cheney (Part One) and The Ten Lies of Dick Cheney (Part Two) (December 2008), Prosecuting the Bush Administration’s Torturers (March 2009), Abu Zubaydah: The Futility Of Torture and A Trail of Broken Lives (March 2009), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two), 9/11 Commission Director Philip Zelikow Condemns Bush Torture Program, Who Authorized The Torture of Abu Zubaydah?, CIA Torture Began In Afghanistan 8 Months before DoJ Approval, Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (all April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison , Dick Cheney And The Death Of Ibn al-Shaykh al-Libi, The “Suicide” Of Ibn al-Shaykh al-Libi: Why The Media Silence?, Two Experts Cast Doubt On Ibn al-Shaykh al-Libi’s “Suicide”, Lawrence Wilkerson Nails Cheney On Use Of Torture To Invade Iraq, In the Guardian: Death in Libya, betrayal by the West (in the Guardian here), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA) (all May 2009) and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009), The Logic of the 9/11 Trials, The Madness of the Military Commissions (November 2009), UK Judges Compare Binyam Mohamed’s Torture To That Of Abu Zubaydah (November 2009), UN Secret Detention Report Asks, “Where Are The CIA Ghost Prisoners?” (January 2010), Binyam Mohamed: Evidence of Torture by US Agents Revealed in UK (February 2010). Also see the extensive archive of articles about the Military Commissions.

For other stories discussing the use of torture in secret prisons, see: An unreported story from Guantánamo: the tale of Sanad al-Kazimi (August 2007), Rendered to Egypt for torture, Mohammed Saad Iqbal Madni is released from Guantánamo (September 2008), A History of Music Torture in the “War on Terror” (December 2008), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), When Torture Kills: Ten Murders In US Prisons In Afghanistan (July 2009), US Torture Under Scrutiny In British Courts (July 2009), What The British Government Knew About The Torture Of Binyam Mohamed (August 2009), Torture in Bagram and Guantánamo: The Declaration of Ahmed al-Darbi (September 2009), UK Judges Order Release Of Details About The Torture Of Binyam Mohamed By US Agents (October 2009), “Model Prisoner” at Guantánamo, Tortured in the “Dark Prison,” Loses Habeas Corpus Petition (December 2009), Dark Revelations in the Bagram Prisoner List (January 2010), and also see the extensive Binyam Mohamed archive.

And for other stories discussing torture at Guantánamo and/or in “conventional” US prisons in Afghanistan, see: The testimony of Guantánamo detainee Omar Deghayes: includes allegations of previously unreported murders in the US prison at Bagram airbase (August 2007), Guantánamo Transcripts: “Ghost” Prisoners Speak After Five And A Half Years, And “9/11 hijacker” Recants His Tortured Confession (September 2007), The Trials of Omar Khadr, Guantánamo’s “child soldier” (November 2007), Former US interrogator Damien Corsetti recalls the torture of prisoners in Bagram and Abu Ghraib (December 2007), Guantánamo’s shambolic trials (February 2008), Torture allegations dog Guantánamo trials (March 2008), Sami al-Haj: the banned torture pictures of a journalist in Guantánamo (April 2008), Former Guantánamo Prosecutor Condemns “Chaotic” Trials in Case of Teenage Torture Victim (Lt. Col. Darrel Vandeveld on Mohamed Jawad, January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (Mohammed El-Gharani, January 2009), Bush Era Ends With Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Forgotten in Guantánamo: British Resident Shaker Aamer (March 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), Torture In Guantánamo: The Force-feeding Of Hunger Strikers (June 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Torture And Futility: Is This The End Of The Military Commissions At Guantánamo? (September 2009), A Truly Shocking Guantánamo Story: Judge Confirms That An Innocent Man Was Tortured To Make False Confessions (Fouad al-Rabiah, September 2009), UK Court Orders Release Of Torture Evidence In The Case Of Shaker Aamer, The Last British Resident In Guantánamo (December 2009), Shaker Aamer: UK Government Drops Opposition To Release Of Torture Evidence (December 2009), Afghan Nobody Faces Trial by Military Commission (January 2010), Murders at Guantánamo: Scott Horton of Harper’s Exposes the Truth about the 2006 “Suicides” (January 2010), Two Algerian Torture Victims Are Freed from Guantánamo (January 2010), and the extensive archive of articles about the Military Commissions.

PRESS RELEASE: New Guantánamo documentary on UK tour

Outside the Law: Stories from Guantanamo

PRESS RELEASE

New Guantánamo documentary on UK tour

Focuses on prisoners whose torture has been exposed by UK courts and is being investigated by police

Former prisoner Omar Deghayes and journalist Andy Worthington will be speaking at screenings across the country

“Outside the Law: Stories from Guantánamo” is a new documentary film, directed by filmmaker Polly Nash and journalist Andy Worthington (author of The Guantánamo Files). The film focuses on the stories of three particular prisoners — Shaker Aamer (who is still held), Binyam Mohamed (released in 2009) and Omar Deghayes (released in 2007) — and the tour coincides with a mounting scandal involving British complicity in torture, which focuses on Shaker Aamer and Binyam Mohamed.

On 10 February, the UK Court of Appeal ordered the release of a summary of documents revealing that US agents had tortured Binyam Mohamed while he was held in Pakistan in 2002, and that the British government knew about it. Foreign secretary David Miliband had tried to suppress this summary for 18 months. MI5’s involvement in Mohamed’s case is now being investigated by the Metropolitan Police, and on 19 February it was revealed that the Met is now investigating claims that Shaker Aamer was tortured in US custody in Afghanistan, while British agents were present.

Tour dates

Saturday February 27: National Film Theatre, South Bank (organized by the BFI)
Monday March 1: LSE, London
Thursday March 4: Roehampton University
Friday March 5: Oxford Brookes University
Tuesday March 9: Bradford Playhouse
Wednesday March 10: Norwich
Thursday March 11: Sheffield Hallam University
Tuesday March 16: SOAS, London
Wednesday March 17: UCL, London
Thursday March 18: The University of Kent, Canterbury
Monday March 22: The University of Dundee
Tuesday March 23: The University of Aberdeen
Wednesday March 24: Edinburgh
Thursday March 25: Glasgow

Further dates to follow.

About the film

“Outside the Law: Stories from Guantánamo” tells the story of Guantánamo, and includes sections on “extraordinary rendition” and secret prisons, explaining how the Bush administration turned its back on domestic and international laws, how prisoners were rounded up in Afghanistan and Pakistan without adequate screening (and often for bounty payments), and why some of these men may have been in Afghanistan or Pakistan for reasons unconnected with militancy or terrorism (as missionaries or humanitarian aid workers, for example).

The film is based around interviews with former prisoners (Moazzam Begg and, in his first major interview, Omar Deghayes, who was released in December 2007), lawyers for the prisoners (Clive Stafford Smith in the UK and Tom Wilner in the US), and journalist and author Andy Worthington, and also includes appearances from Guantánamo’s former Muslim chaplain James Yee, Shakeel Begg, a London-based Imam, and the British human rights lawyer Gareth Peirce.

“Outside the Law: Stories from Guantánamo” provides a powerful rebuke to those who believe that Guantánamo holds “the worst of the worst” and that the Bush administration was justified in responding to the terrorist attacks of September 11, 2001 by holding men neither as prisoners of war, protected by the Geneva Conventions, nor as criminal suspects with habeas corpus rights, but as “illegal enemy combatants” with no rights whatsoever.

For further information, interviews, or to inquire about broadcasting, distributing or screening “Outside the Law: Stories from Guantánamo,” please contact Andy Worthington or Polly Nash.

“Outside the Law: Stories from Guantánamo” is a Spectacle production. The tour is arranged by Spectacle, the Guantánamo Justice Centre and Andy Worthington.

For full tour details, see here.

DVDs are available to buy from Spectacle.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

As Police Launch New Torture Inquiry, It’s Time for Shaker Aamer to Come Home from Guantánamo

Shaker Aamer and two of his childrenOn Friday, it emerged in a UK court that the Metropolitan Police is investigating allegations that MI5 was complicit in the torture, in US custody in Afghanistan, of Shaker Aamer, the last British resident still held at Guantánamo. In the High Court, Richard Hermer QC, counsel for Aamer, told Mr. Justice Sullivan that Met officers had visited his solicitors, Birnberg Peirce, on Wednesday. “It became apparent they are now investigating allegations raised by Mr. Aamer into the alleged complicity of the UK security service in his mistreatment,” he said, adding that the police had made an application to the court “for release of relevant documents” relating to Aamer’s allegations that the confessions he made in US custody were obtained through torture.

This is another blow for the government, which recently gave up a short-lived struggle to prevent the release of the documents to Shaker Aamer’s lawyers, following a High Court ruling in his favour. Expressing  dissatisfaction with the government, Mr. Justice Sullivan stated on Friday, “These whole proceedings have been a gigantic waste of time and money,” and ordered the government to pay the costs of Aamer’s lawyers, granting an interim payment of £25,000.

As I have explained before, the emergence of torture allegations against Shaker Aamer — and his lawyers’ pursuit of relevant documents in the possession of the British government, allied to the claims that MI5 was complicit in the torture — reflects the case of Binyam Mohamed, the British resident who was freed from Guantánamo last February, after both the British and American governments realized that releasing him would, at least, take the edge off a mounting torture crisis that showed no sign of going away.

In Mohamed’s case, the High Court judges refused to back down, leading to an extraordinary ruling two weeks ago, in the Court of Appeal, ordering the government to release information revealing how US agents had tortured Mohamed in Pakistan, and how the British government knew about it, which foreign secretary David Milband had been trying to suppress for 18 months.

The police investigation into Shaker Aamer’s allegations is the third such case to be pursued by the Metropolitan Police, which is investigating claims relating to the interrogation of Binyam Mohamed in Pakistan by an agent identified only as “Witness B,” and also to allegations against MI6 that have been made by another unidentified man. There is, moreover, an overlap between two of these cases, because Shaker Aamer is a key witness in the allegations made by Binyam Mohamed.

In Shaker Aamer’s case, there is no guarantee that releasing him will do much to ease the discomfort of the security services and the government in light of increasing calls for an independent investigation into the full extent of British complicity in torture. These now have a momentum of their own, unprecedented in any country that was deeply involved in the “War on Terror,” and in marked contrast to the recent whitewash in the US of the Justice Department lawyers who wrote memos authorizing the use of torture.

On Saturday, it was reported that the British government’s human rights watchdog, the Equality and Human Rights Commission, had become involved, and that the Commission’s Chair, Trevor Phillips, had written to Justice Secretary Jack Straw, stating, as the Times described it, that “it can no longer ignore the growing body of allegations against MI5 and MI6.” In the letter, Phillips wrote that the government’s “blanket denials” were “an inadequate response,” and that “Not enough has been done to reassure the commission and the public that these allegations are unfounded.”

Entering into territory that has previously been almost the exclusive preserve of the Guardian (whose reporter, Ian Cobain, has worked tirelessly to expose evidence of British complicity in the torture of British citizens abroad), the Times added, “A dossier of 25 cases has now been built up, including complaints of ill treatment, illegal detention and torture.” The Times also devoted a two-page spread to these cases, and added that the Equality and Human Rights Commission was “concerned about mounting evidence that these actions were condoned by British agencies.”

Trevor Phillips explained, “Given the UK’s role as a world leader on human rights, it would be inexplicable for the Government not urgently to put in place an independent review process to assess the truth, or otherwise, of these allegations.” He also told the Times that he found it “inexplicable” that the government was a year late in providing a report to the United Nations Committee against Torture.

Given these developments, the plight of Shaker Aamer is unlikely to be a show-stopper. However, securing his release would certainly blunt some of the criticism, and would, moreover, demonstrate that the government is still capable of doing something right.

Shaker Aamer has been cleared for release from Guantánamo since 2007, but has not been freed, despite British requests for his return. The US authorities have cited ongoing security concerns, which makes a mockery of the whole process of clearing someone for release. However, beyond this obvious hypocrisy there are also fears that it suits both the British and the Americans to keep holding, for as long as possible, a man routinely described as the most influential prisoner in Guantánamo — not because he has any terrorist connections, but because he is extraordinarily eloquent and charismatic, and a passionate advocate for justice who has resisted the lawlessness and brutality of the “War on Terror” from the first day that he was sold to US forces by bounty hunters in December 2001. As a result, he may well know more about the dark workings of Guantánamo than any other prisoner, and this — added to his eloquence and outspokenness — undoubtedly makes him a threat.

Last September, former prisoner Moazzam Begg, one of Shaker Aamer’s closest friends, captured something of his personality in an excerpt from the last letter received by his wife in 2008, in which he wrote:

Yes I lost a lot of weight, yes I have a lot of sicknesses, yes I’ve got short sight, yes my bones are aching, yes I got white hair, yes I got old, but my heart is still young, my mind still strong — a lot stronger than ever. My soul’s got the biggest wings to fly and help others to fly. I am a lot wiser, a lot [more] patient, a lot [more] knowledgeable, a lot [more] merciful, a lot [more] loving and caring, a lot [more] helpful. I feel I can change the world to be a better place. I feel I can restore justice so we can have peace and love amongst each other.

Clearly, holding onto Aamer is not a delaying tactic that can prevail forever, and it would, therefore, make sense for the British government to exert the kind of pressure on its closest ally that it is undoubtedly capable of when necessary, and demand Shaker Aamer’s immediate return to the UK, to rejoin his British wife and his four children. As his solicitor, Gareth Peirce, explained on Friday, “Mr. Aamer is a victim and key witness in [the police] investigation — and yet where is he? He is in Guantánamo where the police can’t go to interview him.” She added, “It is of central importance that everything is done to have him returned to this country,” and also explained that, although the British government claimed that it was making “strenuous efforts” to have him returned, “There is no diplomatic pressure being exerted. There is none. The Americans are saying: ‘What pressure?’”

Outside the Law: Stories from GuantanamoNote: Gareth Peirce will be speaking about Shaker Aamer at a screening of the new documentary, “Outside the Law: Stories from Guantánamo” at the National Film Theatre on Saturday February 27, at 2 pm. Further information about the screening, which is organized by the BFI, can be found here, along with booking details.

Directed by filmmaker Polly Nash and journalist Andy Worthington (also the author of The Guantánamo Files), “Outside the Law” tells the story of the Bush administration’s post-9/11 flight from the law by focusing on the stories of three prisoners in particular: Shaker Aamer, Omar Deghayes, and Binyam Mohamed. Omar, Andy and Polly will also be speaking after the screening, in a Q&A session chaired by Victoria Brittain, and Omar and Andy are then taking the film on a UK tour, where they will focus on Shaker Aamer’s plight. Details of the tour can be found here, and details of an Amnesty International campaign to secure Shaker Aamer’s release can be found here.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

Moazzam Begg Responds To His Critics

Moazzam BeggThe following article, originally published on Cageprisoners, is Moazzam Begg’s first detailed response to the campaign directed at his relationship (and that of Cageprisoners) with Amnesty International, which I reported in an article entitled, “Defending Moazzam Begg and Amnesty International.” I am pleased to be cross-posting it here, and hope that readers pay attention to Moazzam’s report that he and Cageprisoners have recently received death threats, and that, for his own safety, he is withdrawing from public events for the foreseeable future. From my own point of view, I maintain that Gita Saghal is mistaken in her view of Moazzam and Cageprisoners, and that she should dissociate herself from the opportunists who have seized on her complaints, and whose lust for war and Islamophobia make them the most unprincipled bedfellows for someone who claims to respect universal human rights.

Hatred and Another Agenda: A Response by Moazzam Begg

In the Name of Allah Most Compassionate Most Merciful,

I had not imagined that the poorly researched Sunday Times article last week with the suggestion that it promised to expose a tangible link between Amnesty International, the Taliban and I was actually a prelude to something far more sinister against Cageprisoners and I in the days to come.

What I’ve found most puzzling about this whole episode is the timing and what the argument claims to be about. So here I wish to point out some glaring facts that have been purposefully neglected by those leading the charge against me, including, I’m afraid, Gita Sahgal, who I’d really hoped would have applied a little more wisdom before she began her crusade.

The first and only time I’ve ever met Ms. Sahgal was on a BBC Radio 4, Hecklers programme hosted by Mark Easton, in 2006. She made a presentation which alleged that the Blair government was pandering to fundamentalists in its fight against terrorism by engaging with groups like the Muslim Council of Britain (MCB) — who she alleged were linked to “some of the most dangerous movements of our time.” Responding to her I joined a panel that included Daud Abdullah (MCB), Tariq Ramadan, Tahmina Saleem of the Islamic Society of Britain (ISB) and Nazir Ahmad of the House of Lords.

Ms Sahgal now avers that Amnesty’s relationship is damaged through association with me, but her ideas seemed a little more paradoxically amenable when I suggested that her thesis was flawed because the MCB, ISB, Mr. Ramadan and Ahmed — with all due respect — were largely regarded as sell-outs by some of the very people we needed to engage. I gave her the example of the British government’s banning the BBC from broadcasting Sinn Fein leader Gerry Adams’ voice during the Irish “Troubles.” I said, based on this experience, that the government should in fact be speaking to people like Abu Qatadah, no matter how unpalatable that sounded. Ms Sahgal responded unexpectedly by saying she had no quarrel with my analysis.

So if Gita Sahgal in fact does not oppose dialogue with “extremists” then why all this fuss now? I have been harking on about engagement for years. This seems even more bizarre because only a couple of weeks ago Gordon Brown met in London with Hamid Karzai and outlined a new policy to engage with the Taliban. How ludicrous it seems therefore that I am described the very next week as “Britain’s most famous supporter of the Taliban.” Does anyone really believe this? Surely if that was the case I’d have been invited to the discussions with Messrs. Brown and Karzai about talking to the Taliban, being their “most famous supporter”?

If this matter was not so serious I’d be rolling over in laughter. But it is — deadly serious. Over the past few days we have received numerous death threats at Cageprisoners — and this is just the beginning. No doubt, the police will be trawling through the copious hate-mongering posts on right-wing, anti-Muslim blogs but I doubt that will solve anything.

I think much of it can be traced back to when Cageprisoners launched a report on the detention of terrorism suspects in the UK last year entitled “Detention Immorality” (PDF), which was hijacked by a seemingly unhinged lawyer-cum-blogger who has openly stated that he aims to destroy Cageprisoners and me — though I still don’t understand why. He regularly blogs and cross-posts attacks against Cageprisoners, Islamic organisations and me — amongst others — in an effort to “expose” us. But that is only a part of the problem.

In a BBC discussion with my colleague Asim Qureshi last week, Ms. Sahgal said, “I feel profoundly unsafe … talking to Asim Qureshi and Moazzam Begg, but I’m more than willing to meet them.” This sits very strangely with the fact that Asim was already seated next to her during the discussion and that she expressed no such sentiment when she actually did meet me in 2006. In reality it is we who are and have been living in fear for a very long time. We are afraid not only of Britain’s anti-terror measures, which are amongst the most draconian in the world — that would see, for example, a girl convicted of terror offenses for writing poetry — but we have to accept, on a daily basis, the vilification of all things Muslim by certain politicians, a public that increasingly sees Muslims as a “fifth column,” fuelled by a media and blogosphere that vilifies us as a matter of routine. Still, I’d be more than happy to sit with Ms. Sahgal, safety permitting, and put to her some of the things I’ve written here.

I could insist that she first disassociate from the support and association she has from the pro-war lobby as they have cemented and justified, through the media, illegal wars of occupation which have led to the deaths of hundreds of thousands of people and created severe human rights abuses for many — not least women — or her status as universal human rights advocate should be publicly called into question. However, it is my code of life that my oppressor does not become my teacher. And guilt by association does not mean moral bankruptcy. I am more interested in the work I do — and I had hoped the same of Ms. Sahgal, a lot of whose work she might be surprised to discover I would support.

In May last year I appeared alongside Colonel Tim Collins (famous for the stirring speech he gave to British soldiers on the eve of the 2003 Iraq invasion) on a televised panel discussion about Barack Obama’s attempt to censor the publication of photographs of alleged prisoner abuse which included images of apparent rape and sexual abuse of Iraqi women by US soldiers. Col. Collins opined that these pictures should be made public so that the world becomes aware of the abuses and that the culprits are brought to book. Again, there was a deafening silence on this issue — especially from the journalists who promoted the war, the same ones who now champion Ms. Sahgal’s work on women’s rights.

Sadly, Ms. Sahgal, and subsequent columnists and bloggers, have wilfully misled people into believing that I am somehow opposed to women’s rights. During the mid-90s I took several aid convoys to Bosnia, motivated to help the people there after genocide, ethnic cleansing and mass rape was used as a weapon of war against women. Bizarrely, my decision to go there too has been described as part of a mindless “jihadist” fantasy, overlooking completely that an entire Muslim population, in the heart of Europe, was being systematically put to the sword, under the noses and “protection” of European nations.

It is by now public knowledge that I was involved in the establishing and running of a school for girls in Kabul, Afghanistan, during the rule of the Taliban. The Taliban did not give us a licence to operate but neither did they impede us from having the school — openly — or from having the girls collected to and from the school in buses clearly marked with the name of the girls’ school. There is a deliberate attempt by my detractors to neglect this point each time I mention it — and I can only assume why: it doesn’t fit the stereotype, or the agenda.

Then there is the repeated allegation that because I went to live in Afghanistan — with my wife and children — I deserve what happened to me because I chose to live under a regime that was known for abusing women’s rights — amongst other things. I have never denied the Taliban were guilty of abusing women’s rights, but my presence there should not be equated as an endorsement of their views regarding them. A similar charge however is not put to the numerous white, Caucasian and non-Muslim NGO workers who were living there during the time of the Taliban — sometimes with their families — well before I ever arrived. I wonder why?

It might come as a surprise to some that the executive director of Cageprisoners for over six years was a Muslim woman — someone who was regarded as the backbone of the organisation and an immense source of pride for us all. Since my return from Guantánamo, Cageprisoners and I have been very closely involved in organisations which assist the silent victims of anti-terror measures (utilised against men detained without charge): their wives and children. These organisations help to empower women to face the harsh reality of life without a partner. Cageprisoners’ patron, Yvonne Ridley, has been the most active and vociferous in this regard whilst I am a patron of one of these support groups for women. But what support, if any, have this section of our population received from the great women’s rights defenders who claim to champion their cause?

I’m not sure why, after having spent years in Bagram and Guantánamo and being subjected to innumerable human rights violations and abuses — including witnessing two murders — I might be expected to be an expert on women’s issues, especially when almost every single prisoner I encountered was male, even though some of the abuses were carried out by female soldiers. There was, however, one woman whose screams I still hear sometimes in my head. I was led to believe she was my wife being tortured in the next room while photographs of her and my children were waved in front of me as I lay tied to the ground with guns pointing at me and interrogators asking: “What do you think happened to them the night we took you away? Do you think you’re going to see them again?”

Several months later I received news via the ICRC that my wife and kids were, thankfully, safe, but I knew the screams had been real, that it had been somebody’s wife, sister, daughter or mother I had heard. After my return from Guantánamo I began investigating who that person might have been but have been unsuccessful in my findings. However, through my own investigations I discovered that there was a female prisoner once held in Bagram and her number was 650. After years of denial of the existence of women prisoners the US administration finally admitted that there had indeed been a female held in Bagram — but only after I’d asked a colleague to request the US administration’s official policy on detaining women in Afghanistan.

Shortly after his return from Guantánamo Binyam Mohamed told me that he believed prisoner 650 was in fact Dr. Aafia Siddiqui. This is the same Dr. Siddiqui that last week’s Times extraordinarily provides as evidence of Cageprisoners’ campaigns for convicted terrorists. And while I’m making the point, Cageprisoners has not campaigned for anyone who has received a fair, transparent and appropriate sentence as a result of proper due process. As I’ve stated previously, Cageprisoners is an information portal which merely carries information and reports on the cases of all held as part of the War on Terror. In no place does Cageprisoners ever claim that some of these convicted prisoners are “innocent” or faced a “miscarriage of justice.” Cageprisoners has raised the cases of those held under control orders, deportation, detention without trial, US extradition — making them no different from other human rights organisations that similarly do not face the same accusations as a result. The people we do campaign for are highlighted clearly on our “Campaigns” page on the site. But we also recognise that not everyone who is convicted of terrorism is always necessarily an “embodiment of evil” — Nelson Mandela serves as the greatest reminder of that.

In October last year I attended a conference in Malaysia where I met survivors of the Abu Ghraib prison. Amongst them was a woman who told me about some extremely disturbing experiences she and others had gone through. She now runs a women’s refuge in Syria for Iraqi refugees. Cageprisoners intends to do more work on the cases of such women and it is an issue I discussed with some Amnesty UK members who were very keen to bring her over and start highlighting issues related to sexual violence against women during incarceration. In fact, I discussed this issue at the Amnesty Human Rights Action Centre only in November on a panel with Professor Joanna Bourke, who spoke about “Sexual Violence in the War on Terror.” Ms. Sahgal, oddly, was nowhere to be seen. After countless events with Amnesty — or any of the 600-plus I’ve spoken at around the country — I’ve still never encountered Ms. Sahgal since meeting with her in 2006 when she had “no quarrel with my views.”

I may be no expert on women’s rights issues but I think I have a little idea and sympathy to some of their causes — as a husband and father. Take Johina Aamer for example, a 12-year old girl whose father, Shaker Aamer, has been held for over eight years without charge or trial in Guantánamo. Johina’s mother has undergone repeated psychiatric treatment since her husband’s abduction all those years ago. I went with Johina, Vanessa Redgrave, Victoria Brittain, Helena Kennedy, Gareth Peirce, Kate Hudson and Kate Allen to Downing Street so she could deliver a letter to the Prime Minister, asking that her father finally be allowed home. None of those who attack me now were there — from media or otherwise — to show their support for this innocent little girl. That really is shameful, because this is the sort of thing they are opposing when they address my relationship with Amnesty.

There is another charge implicitly laid against me (and Cageprisoners): that I am only concerned with the rights of Muslims. Just a few months after my release from Guantánamo I saw on the television images of four hostages in Iraq, dressed in orange Like-like suits, facing threats of execution. I contacted all the former Guantánamo prisoners I knew and issued a televised and written statement in all our names calling for their release. Sadly, the only American hostage was killed but the others, a Briton, an Australian and a Canadian (all non-Muslims), all lived and are safely back home. All of them have written to me the warmest messages of support I’ve ever read. I told them it was the orange suits that did it.

I find incredible too that there is a new re-reading of my book, Enemy Combatant — after having been in print for over four years — as some kind of handbook for the propagation of the Taliban, fanaticism and a latent Islamic extremism. That sits very peculiarly with the fact that it has received very positive reviews from the likes of Tony Benn, Jon Snow, David Ignatius (the Washington Post), Yasmin Alibhai-Brown (the Independent) and, ironically, Christina Lamb (the Sunday Times). Did I fool them all? The book — and I — has been scrutinised at every literary festival I can think of, from Hay-on-Wye to Edinburgh and Dartington to Keswick. The common response I get is that it (and I) lacks bitterness, is devastatingly reasonable, conciliatory in nature and, as Desmund Tutu says: “I feel that Enemy Combatant has the capacity to win hearts and minds.”

Unfortunately some minds are not accompanied by hearts in order that they can be won. I would have thought that the pioneering work done by Cageprisoners and myself might also have served to create more understanding and less hatred by engaging in dialogue with former US soldiers and interrogators — but I seem to have been proved wrong. Up until now I have spoken all around the country addressing over 50,000 people with a view to educate, debate, understand and be understood so that hatred is eroded through interaction and knowledge.

The numbers of people who have told me they’ve been inspired to learn more, get involved, join human rights groups like Amnesty International, raise awareness and develop a new and nuanced understanding is countless. But, in spite of all the blatant anti-Muslim feeling and the rise of the far-right Islamophobic sentiments it is only now, after this episode with Ms. Sahgal and her protagonists, that I am reconsidering my entire approach towards engagement and dialogue to create understanding and acceptance. The fact is the climate of fear has just been raised a level — and I am no longer immune. I will continue to campaign for the men suffering in the concentration camps of Bagram, Guantánamo and the secret prisons. But withdrawal to a place of safety, my own Muslim community, seems to be the best option right now. It seems, at least to some, that engagement has its limits.

Before I do though, it is worth noting how we have reached this point.

The Times led the libellous charge straight after the failed Detroit bomb plot by suggesting that Umar Farouk Abdulmutallab had become radicalised by attending a couple of Cageprisoners’ lectures, without offering one shred of evidence, and once again, choosing to completely ignore Cageprisoners’ response. This charge was parroted again last week in David Aaronovitch’s contribution to the attack.

A quick look at how the Sunday Times has dealt with the latest issue almost beggars belief: an article written by Richard Kerbaj, who quotes almost nothing of what I say and uses language to suggest the Taliban is actually involved in the whole affair as a headline. I write an immediate response, registering a complaint with the Press Complaints Commission, his editor and my lawyers. The following Sunday another two articles appear in the same paper: the first, a more sober one by Margaret Driscoll, which actually uses my responses that Kerbaj had so deliberately omitted the week before. The second, by Kerbaj again, claims that “Second Amnesty chief attacks Islamist links,” showing clearly the Sunday Times sees the problem isn’t even about the Taliban anymore, rather it’s about having Islamic ideals. The only problem is that Sam Zarifi, upon whom the article is based, also says Kerbaj has mischaracterized his views. It is strange that Mr. Kerbaj and the Sunday Times make careers out of this sort of thing, calling it “news.”

The fuse, however, had been lit and out came the others, the way they had done before, demonstrating their credentials in supporting the wars in Iraq and Afghanistan — and everything that came with that. This is what it comes down to in my estimation. The attacks have been very personal, questioning everything I’ve done in my life in the same way as the US/UK intelligence services had sought to when they colluded in my abduction, false imprisonment, torture and abuse. What no one had bargained for though, not even me, was what would happen after my release. The motto of Cageprisoners is “giving a voice to the voiceless.” That voice has echoed across the world and has even reached the ears of some very influential and powerful people, who recognise just how appalling this whole process has been.

Cageprisoners’ previous work on reports like “Off the Record” (PDF), which details the cases of “ghost prisoners” and enforced disappearance and the secret detentions network discussed in “Beyond the Law” (PDF) illustrate the levels of criminality we have stooped to in the name of fighting terrorism. The extent to which our own government has been involved in this is quite breathtaking too. Our report last year, “Fabricating Terrorism II” (PDF), highlighted the cases of 29 individuals — one of them before September 11 — who had been tortured and abused with the complicity of British intelligence services, while “Detention Immorality” showed the extent to which prisoners are held without charge or trial in the UK under secret evidence.

The cases we, the former Guantánamo prisoners and torture victims, have against our own government for complicity in torture is so troubling that I have actually been questioned at UK airports if I had travelled abroad in pursuance of my case against the intelligence services.

Last week’s revelations that British intelligence was involved in the torture of Binyam Mohamed came as no surprise to me. It is something I’ve been saying publicly, at Amnesty meetings, in my book and my writings since my return. Cageprisoners and I have also led the campaign for Shaker Aamer who I believe was not only tortured in the presence of MI5 but the government is very worried that revelations of complicity in his torture might be even worse than Binyam’s.

Ms. Sahgal has, perhaps unwittingly, become a cause celebre for some of the pro-war hacks in this country — and around the world (who, as a result, are pro-by-products of the wars: targeted assassinations, “collateral damage,” refugee crises, secret and military prisons, torture etc.) They are a tool for the intelligence services or people like Paul Rester, the director of the Joint Intelligence Group at Guantánamo, who says, “[Begg] is doing more good for al-Qaeda as a British poster boy than he would ever do carrying an AK-47.” I firmly believe this, more than anything else, is the reason why people want my voice and that of Cageprisoners silenced. But it won’t be — not as long as I can help it.

It has been my great pleasure to break many a stereotype one would assume of a Guantánamo terrorism suspect who believes in Islam as a way of life. As a child I had studied at a Jewish primary school and as an adult I married a Palestinian woman. Both have given me fond and loving memories. Last week I was walking with a friend in the streets of Berlin, where Adolf Hitler had once created — and ultimately destroyed — the capital of his Nazi wonderland. My friend is an observant Jew whose family had fled the pogroms in Eastern Europe around the same time. The experience was surreal for both of us: for him, the knowledge of the sort of hatred that once spewed out on these very streets so many years ago changed the world; for me, the growing feeling that hatred of a comparable sort, albeit in a subtler guise, is on the march once again. I can’t help but to think now, as we passed what was once the Reich Ministry of Public Enlightenment and Propaganda, what Joseph Goebbels once said about the truth: “If you tell a lie big enough and keep repeating it, people will eventually come to believe it.”

My God, was he right.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

Will Parliament Rid Us of the Cruel and Unjust Control Order Regime?

The House of CommonsSince last June, when, in the wake of a significant ruling in the European Court of Human Rights, the Law Lords ruled that imposing control orders breaches Article 6 of the European Convention on Human Rights, which guarantees the right to a fair trial, the system established in haste and paranoia in early 2005 has been crumbling.

In the last eight months, several former detainees have had their control orders quietly dropped, and other orders have been quashed or revoked by judges. Nevertheless, twelve of the orders, which, on the basis of secret evidence, consign detainees to a life of virtual house arrest, with severe restrictions on their liberty, remain in force.

Those held on control orders — including British citizens, who, in some cases, have been subjected to a form of “internal exile,” forcibly removed from their homes and made to live in other parts of the country — have, understandably, learned to be wary of suggestions that the system is on its last legs, and with good reason.

On February 1, Lord Carlile, the government’s independent reviewer of terrorism legislation, concluded his fifth annual review of control orders (PDF), which failed to endorse calls for the much-criticized system to be replaced by a combination of established surveillance techniques, or trials incorporating intercept evidence.

Instead, Lord Carlile maintained that there was “no better means of dealing with the serious and continuing risk posed by some individuals” than control orders, and claimed that “abandoning the control orders system entirely would have a damaging effect on national security.”

“I have considered whether control orders can or should be replaced by something else, or even renamed,” he continued, adding, “I have been unable to find, or devise, a suitable alternative for the important residue of cases that cannot be dealt with by prosecution.”

For the system’s many critics, the only positive aspect of Lord Carlile’s report was his advice that control orders should only be used in “a small number of cases.” He added, however, that this small number concerned cases “where robust information is available to the effect that the suspect individual presents a considerable risk to national security, and conventional prosecution is not realistic.”

This, of course, endorses the continuation of the flawed rationale that has sustained the regime to date — which, essentially, is based on an assumption that traditional notions of guilt or innocence and of a suspect’s right to test the allegations against him in a court of law are quaint and outdated. Critics were not reassured by Lord Carlile’s additional recommendation: that control orders are “no longer suitable for cases where the main objective is to prevent travel abroad.” He added, “In such cases, after further legislation, there should be available a Travel Restriction Order, with a limited range of obligations.”

Among the critics who pounced on Lord Carlile’s report was Isabella Sankey, Liberty’s director of policy, who noted that “Suspects are driven mad by endless punishment without charge.” She told the Guardian, “There are reams of criminal offences with which to charge terror suspects. The Home Office should stop trying to save face over this discredited policy and pass the case files to the CPS [Crown Prosecution Service] where they belong.”

Two days after Lord Carlile’s report was issued, the Joint Committee on Human Rights, comprising members of the House of Commons and the House of Lords, met to hear oral evidence on “Counter-Terrorism Policy and Human Rights: Control Orders” from two solicitors representing control order detainees (Gareth Peirce and Sean Mcloughlin), and three Special Advocates (Helen Mountfield, Angus McCullough and Thomas de la Mare) who represent the detainees during discussions of secret evidence in court. The transcripts of the hearings are available here and here, and they make for fascinating reading.

Gareth Peirce and Sean Mcloughlin, for example, provided poignant examples of the kinds of pressure that individuals and their families — including British nationals — are placed under. Describing the “internal exile” of British suspects, Gareth Peirce explained:

It is being applied to British citizens who have grown up, for instance, in east London all their lives, whose grandparents are there, whose wife’s grandparents are there, who are suddenly parachuted into a place in Nottinghamshire, in Gloucestershire, where the man is told from there on in he has to live there, that it is a modification of his control order, and, to be frank, the women in this are treated with complete contempt. It is as if they do not exist. The man is told, “Your wife, if she works, can find another job; she can join you if she wants to or she can stay in east London. We know that you can find schools for the children in the area”, and the effect of this on a number of families is quite extraordinary.

She added, “This may affect only a small group of people but in terms of its contribution to what one might call the folklore of injustice it is colossal.”

In addition, the evidence provided by the Special Advocates opened a window into a corner of modern British law that receives far too little scrutiny. In the bizarre world of the British government’s post-9/11 terror legislation, the Special Advocates represent the detainees in closed sessions in court, where classified evidence is discussed, but are not allowed to mentioned anything discussed in the closed sessions with either their clients or their lawyers. This absurd situation figured prominently in the Law Lords’ criticism of the regime, because they noted that one of the major obstacles to fairness (the right to a fair trial guaranteed under Article 6 of the ECHR) was that a suspect held under a control order is not given “sufficient information about the allegations against him to enable him to give effective instructions to the special advocate assigned to him.”

All five witnesses provided the Committee with ample evidence that, despite the Law Lords’ ruling leading to a number of control orders being dropped, so that the entire regime “is on the rocks,” as Gareth Peirce explained, “the Home Office clings to the wreckage and it will construct some other vessel out of it, or it will attempt to,” as Peirce also explained. As the solicitor for many of the men subjected to control orders, Peirce also pointed out that, although some control orders had been dropped as a result of the Law Lords’ ruling:

In all cases in which it applied, the arguments are still going on in court in different ways. Some control orders have been revoked; some have been quashed. The Home Office says quashing should not apply because that has a completely retrospective effect, which means they were always unlawful, so there is still further argument. Some of those people are still under control orders because the Home Office has sought a different basis on which to impose them.

When the Earl of Onslow asked Peirce if she was “back to the cat and mouse game again,” she replied, “We are entirely in the same game,” and later, when the Chair of the Committee, Andrew Dismore, the Labour MP for Hendon, asked, “Are you getting anything more disclosed in practice?” her answer was a resounding, “No.”

The “different basis” for the imposition of new control orders that Peirce mentioned — otherwise known as “light touch” control orders — was elaborated on in the evidence provided by the Special Advocates. Asked to describe a “light touch” control order, Helen Mountfield explained:

An ordinary control order tends to have somebody required to remain at home for perhaps between nine and 13 hours a day, not to have internet access, not to have visitors without prior approval and so on. The light touch control orders no longer have that house arrest element in them but they restrict people from travelling abroad, from having more than one mobile telephone, from going away from home for a night without giving 48 hours’ notice, that sort of control.

Crucially, she added, “They are less restrictive but certainly in my view still sufficiently restrictive to have a serious effect on people’s everyday lives.”

However, what troubled the Special Advocates even more was the fact that the obstacles raised to prevent them adequately representing their clients had not been resolved by the government’s response to the Law Lords’ ruling — or in the advice offered by Lord Carlile. As Angus McCullough stated, the problem was “one of communication,” and he went on to explain:

Following receipt of the closed evidence the special advocate is prohibited from communicating with the open representatives of the controlled person himself other than in writing and through the court and in the full knowledge of the Secretary of State … That feature of the rules, as this Committee will be well aware, has been the subject of criticism not only from this Committee but other bodies as well, and it remains a profound concern of the special advocates. The position has, at least in theory, been slightly alleviated by the House of Lords decision in AF [the ruling in June 2008] but the existing prohibition in our view … remains a significant constraint on the special advocates’ ability to discharge their role effectively even in control order proceedings.

Angus McCullough also noted that the Lords’ ruling “does not, at least currently, apply in SIAC proceedings [where other suspects are imprisoned or held on bail pending deportation], so it is even more acute there.” He also explained that, although the Special Advocates had raised these problems of communication with Lord Carlile, his attempts to dismiss the complaints by claiming in his report that “improved training and closer co-operation should resolve the concerns” were thoroughly inadequate. As McCullough explained:

[T]he problem is hardwired into the current rules, so we do find it hard to understand why Lord Carlisle concludes by doubting that any rule changes are necessary. In our view rule changes are necessary in order to address this problem and we have made our suggestions relatively modest and unambitious, as we see them, as to ways in which the present system could and should be relaxed.

He added that less restrictive measures were in place in employment tribunals, where secret evidence is also being used, and that, in its own dealings with issues related to terrorism, the Canadian government has “adopted a system which permits discussion between open representatives and special advocates on open matters.” At this point, Thomas de la Mare added that “in the United States, where I suppose the security concerns are every bit as great as in the United Kingdom, the system they have used, even in Guantánamo Bay, has been one in which open lawyers see all of the material and yet remain free to communicate with their clients.”

Gareth Peirce was also critical of Lord Carlile, noting that, even during the period of what she correctly described as “internment” — the period from December 2001, when suspects were imprisoned without charge or trial, mainly in Belmarsh, until the Law Lords ruled in December 2004 that this was in contravention of the Human Rights Act, and control orders were introduced — “Lord Carlile had stated, ‘I have seen everything that is in the secret evidence, I am completely satisfied the Home Secretary appropriately certificated the individual,’ even in cases where SIAC itself came to an opposite view, in cases where ultimately the House of Lords condemned the process twice, where the European Court said, ‘This was utterly inadequate information.’” She added that Lord Carlile’s regularly repeated position “gives a further veneer to the Government’s — in our view — exercise of arbitrary measures.”

There are many more worthwhile comments and exchanges in the transcripts, and what struck me in particular was Andrew Dismore’s reflection on the significance of the fact that, in two cases when the Home Secretary had decided to drop the control orders rather than provide any evidence, “it begs the question of whether the control order was necessary in the first place.” I have been stating for some time that this is enormously significant, and that what it reveals is that the government, when pushed, has been forced to reveal that senior officials have come up with a sliding scale of significance for men who were all routinely described as “dangerous terrorists,” and I was pleased to note that it was picked up by the Committee’s Chair.

In fact, the Committee in general seemed skeptical that the control order system was acceptable, especially after the Law Lords’ ruling — and the copious evidence that the government was trying to sidestep the full ramifications of the ruling — and immediately after the hearing, Andrew Dismore told the Guardian that Lord Carlile had “lost credibility,” explaining, “I think there is a risk of the perceptions of his independence being undermined, and that then undermines [his] credibility.” He added, “I think there ought to be a fixed term for his job.”

Whether Parliament will pick up on the Committee’s concerns — or will go no further than to take Lord Carlile’s report at face value — remains to be seen. Lord Carlile’s findings were presented to MPs on the day the report was published, and are due to be debated on March 1, with a vote following soon after. Since its introduction in 2005, the control order regime has only survived by being renewed annually by Parliament. Every year, there have been dissenting voices, but this year there must surely be more. Although Lord Carlile tried to claim in his report that “The control orders system functioned reasonably well in 2009, despite some challenging Court decisions,” this is clearly nonsense, and many MPs know it.

Take action against control orders

In the last ten months, 93 MPs have signed Diane Abbott’s Early Day Motion calling for an end to the use of secret evidence (which underpins both the control order regime, and the deportation cases of other “terror suspects” held without charge or trial). Please write to your MP if they signed up, asking them to vote against the renewal of control orders, and if they have not signed up for Diane Abbott’s EDM, ask them to do so, and also ask them to vote against the renewal of control orders.

Liberty has launched a campaign to put pressure on MPs in the run-up to the vote. You can sign a petition here, lobby your MP here, and download a letter to send to Home Secretary Alan Johnson on this page.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

This article was published exclusively on Cageprisoners.

For other articles dealing with Belmarsh, control orders, deportation bail, deportations and extraditions, see Deals with dictators undermined by British request for return of five Guantánamo detainees (August 2007), Britain’s Guantánamo: the troubling tale of Tunisian Belmarsh detainee Hedi Boudhiba, extradited, cleared and abandoned in Spain (August 2007), Guantánamo as house arrest: Britain’s law lords capitulate on control orders (November 2007), The Guantánamo Britons and Spain’s dubious extradition request (December 2007), Britain’s Guantánamo: control orders renewed, as one suspect is freed (February 2008), Spanish drop “inhuman” extradition request for Guantánamo Britons (March 2008), UK government deports 60 Iraqi Kurds; no one notices (March 2008), Repatriation as Russian Roulette: Will the Two Algerians Freed from Guantánamo Be Treated Fairly? (July 2008), Abu Qatada: Law Lords and Government Endorse Torture (February 2009), Ex-Guantánamo prisoner refused entry into UK, held in deportation centre (February 2009), Home Secretary ignores Court decision, kidnaps bailed men and imprisons them in Belmarsh (February 2009), Britain’s insane secret terror evidence (March 2009), Torture taints all our lives (published in the Guardian’s Comment is free), Britain’s Guantánamo: Calling For An End To Secret Evidence, Five Stories From Britain’s Guantánamo: (1) Detainee Y, Five Stories From Britain’s Guantánamo: (2) Detainee BB, Five Stories From Britain’s Guantánamo: (3) Detainee U, Five Stories From Britain’s Guantánamo: (4) Hussain Al-Samamara, Five Stories From Britain’s Guantánamo: (5) Detainee Z, Britain’s Guantánamo: Fact or Fiction? and URGENT APPEAL on British terror laws: Get your MP to support Diane Abbott’s Early Day Motion on the use of secret evidence (all April 2009), and Taking liberties with our justice system and Death in Libya, betrayal in the West (both for the Guardian), Law Lords Condemn UK’s Use of Secret Evidence And Control Orders (June 2009), Miliband Shows Leadership, Reveals Nothing About Torture To Parliamentary Committee (June 2009), Britain’s Torture Troubles: What Tony Blair Knew (June 2009), Seven years of madness: the harrowing tale of Mahmoud Abu Rideh and Britain’s anti-terror laws, Would you be able to cope?: Letters by the children of control order detainee Mahmoud Abu Rideh, Control order detainee Mahmoud Abu Rideh to be allowed to leave the UK (all June 2009), Testing control orders and Dismantle the secret state (for the Guardian), UK government issues travel document to control order detainee Mahmoud Abu Rideh after horrific suicide attempt (July 2009), Secret evidence in the case of the North West 10 “terror suspects” (August 2009), Letting go of control orders (for the Guardian, September 2009), Another Blow To Britain’s Crumbling Control Order Regime (September 2009), UK Judge Approves Use of Secret Evidence in Guantánamo Case (November 2009), Calling Time On The Use Of Secret Evidence In The UK (December 2009), Compensation for control orders is a distraction (for the Guardian, January 2010), Control Orders Take Another Blow: Libyan Cartoonist Freed (Detainee DD) (January 2010).

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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