Archive for September, 2010

Introducing the Definitive List of the Remaining Prisoners in Guantánamo

Over the next month, in an attempt to focus attention more closely on Guantánamo, and on the remaining prisoners who are held there, I’ll be publishing a nine-part series of articles (in conjunction with Cageprisoners, for whom I work as a Senior Researcher), telling, for the first time, the stories of the 176 men who are still held.

The series begins with the stories of 20 men described by the US authorities as part of the “Dirty Thirty,” seized crossing from Afghanistan to Pakistan in December 2001, who are mostly regarded as having been bodyguards for Osama bin Laden, even though there is copious evidence that these allegations were produced by a number of prisoners who were tortured — including Mohammed al-Qahtani, for whom Guantánamo’s version of the CIA’s torture program was devised in the fall of 2002, and approved by then-defense secretary Donald Rumsfeld.

The articles to follow, covering the rest of the prisoners still held, deal with those seized in particular locations: two cover prisoners seized in Afghanistan (Part Two and Part Eight); two more tell the stories of prisoners seized crossing from Afghanistan to Pakistan in December 2001 (Part Three and Part Four); three deal with prisoners seized in Pakistan (Part Five, Part Six and Part Seven); and the final article covers the “high-value detainees” transferred to Guantánamo from secret CIA prisons in September 2006, and other prisoners, seized in a variety of countries, who were subjected to “extraordinary rendition” and imprisonment in secret CIA prisons (Part Nine).

In reading these articles, I hope that readers will be able to discover the stories of the men behind the statistics of Guantánamo — and the still-repeated and thoroughly unfounded claims that the prison holds “the worst of the worst.” In the accounts, readers will encounter a variety of different individuals. Many of these men traveled to Afghanistan before the 9/11 attacks to fight with the Taliban against the Northern Alliance, and suddenly found themselves to be enemies of America in a “War on Terror,” and others were not even involved in any kind of military conflict, and were, instead, students, humanitarian aid workers, missionaries, or economic migrants, caught in the wrong place at the wrong time.

Many of the 176 men who were still in Guantánamo at the time of writing were rounded up for the substantial bounty payments (averaging $5000 a head) that were paid by the US military for “al-Qaeda and Taliban suspects,” and, given that 596 men have already been released, it should be profoundly troubling that the majority of the men still held were either foot soldiers in an inter-Muslim civil war that had nothing to do with al-Qaeda or the 9/11 attacks, or civilians still struggling to establish their innocence.

Readers will also encounter many stories of brutality and torture in these accounts, but, I believe, few stories of genuine terrorists, and should bear in mind that, as advised by President Obama’s interagency Guantánamo Review Task Force, only 34 of the remaining 176 men are to be put forward for trials, although 48 others are to be held indefinitely without charge or trial (because they are regarded as too dangerous to release, even though there is insufficient evidence to put them on trial), and 92 others are to be released.

One other man, Ali Hamza al-Bahlul, is serving a life sentence in isolation after being convicted in a one-sided trial by Military Commission in November 2008, in which he refused to mount a defense, and another — Ibrahim al-Qosi, a cook in an al-Qaeda compound — is waiting to hear how much longer he will be imprisoned after accepting a plea deal in his trial by Military Commission in July. Another prisoner, Ahmed Khalfan Ghailani (not included here) was transferred to New York in May 2009 to face a federal court trial for his alleged involvement in the 1998 African embassy bombings. His trial is scheduled to begin in the near future.

58 of the men approved for release (or for “transfer,” to use the Obama administration’s language, learned carefully from the Bush administration) are Yemenis, whose release was halted in January. After the capture of the failed Christmas Day plane bomber Umar Farouk Abdulmutallab, a Nigerian who was reportedly recruited in Yemen, President Obama capitulated to unprincipled criticism and issued a moratorium on any further releases to Yemen that appears to have no end date, and that clearly constitutes “guilt by nationality.”

I find it interesting to speculate on which of the Yemenis have been cleared (and who are the 31 Yemenis recommended for trials or for indefinite detention), as this information has not been made publicly available by the Obama administration, but more generally I’m interested to hear whether readers can figure out, from these articles, why the administration believes that there is a good reason to either charge or to continue holding 82 of these men, as it has never seemed plausible to me that there are 82 men in Guantánamo who pose what might be described as “a clear and present danger.”

The lists also contain references to the prisoners’ ongoing habeas corpus petitions in the US District Court in Washington D.C., where the prisoners have won 38 cases and the government has won only 16. Much of what has been confirmed about unacceptable evidence based on statements made by the prisoners themselves (under torture or duress) or by unreliable witnesses in Guantánamo or in other “War on Terror” prisons (who were subjected to torture, duress, or, in a few cases, the promise of better living conditions), has come from these proceedings, and it is disappointing that, at the time of writing, 12 of the 38 men who have won their petitions are still held.

In addition, it is no less disappointing that the majority of those who have lost their petitions were nothing more than low-level Taliban foot soldiers (and, in two cases, a medic and a cook), whose ongoing detention, on an apparently legal basis, is not a validation of the habeas process, but is, rather, an indictment of the unjust basis for holding “War on Terror” prisoners — neither as criminal suspects, not as prisoners of war — that was conceived by the Bush administration, and that has been largely preserved under President Obama.

Andy Worthington
London, September 2010

Please note: The nine parts of the list contain the stories of three released prisoners who have not been identified — two of unspecified nationality who were released in Georgia in March 2010, and an Afghan released in Spain in July 2010.

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. 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 July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners. Cross-posted on The Public Record, Uruknet, Pacific Free Press, Global Research, My Catbird Seat, Veterans Today, Shoah, Break the Chains, and New Left Project.

By One Vote, US Court OKs Torture and “Extraordinary Rendition”

Sometimes a story is so troubling that it takes some time to digest, and the ruling delivered last Wednesday by the Ninth Circuit Court of Appeals (PDF), in a lawsuit filed by the ACLU on behalf of five men subjected to “extraordinary rendition” and torture, is one such story. The men — Binyam Mohamed, Ahmed Agiza, Abou Elkassim Britel, Mohamed Farag Ahmad Bashmilah and Bisher al-Rawi — claim, with some justification, and with copious amounts of evidence in their possession, that their rendition, and their torture in a variety of countries, was facilitated by Jeppesen Dataplan, Inc., a subsidiary of Boeing whose role as “The CIA’s Travel Agent” was first exposed, through statements made by a former Jeppesen employee, in an article by Jane Mayer for the New Yorker in October 2006.

In statements that were later submitted to the court, Sean Belcher, a former employee, said that the director of Jeppesen International Trip Planning Services, Bob Overby, had told him, “We do all the extraordinary rendition flights,” which he also referred to as “the torture flights” or “spook flights.” Belcher stated that “there were some employees who were not comfortable with that aspect of Jeppesen’s business” because they knew “some of these flights end up” with the passengers being tortured, but added that Overby had explained, “that’s just the way it is, we’re doing them” because “the rendition flights paid very well.”

Last Wednesday, however, when asked to rule on whether these five men should have their day in court, or whether the government should be allowed to dismiss their lawsuit by claiming that the exposure of any information relating to “extraordinary rendition” and torture threatened the national security of the United States, American justice contemplated looking at itself squarely in the mirror, telling truth to power, and allowing these men the opportunity to address what had happened to them in a court of law, but, at the last minute, flinched and turned away. By six votes to five, the Court decided that, in the interests of national security, the men’s day in court would be denied.

As Judge Raymond C. Fisher stated in the majority opinion (in which he was joined by Chief Judge Alex Kozinski, and Judges Richard C. Tallman, Johnnie B. Rawlinson, Consuelo M. Callahan and Carlos T. Bea):

This case requires us to address the difficult balance the state secrets doctrine strikes between fundamental principles of our liberty, including justice, transparency, accountability and national security. Although as judges we strive to honor all of these principles, there are times when exceptional circumstances create an irreconcilable conflict between them. On those rare occasions, we are bound to follow the Supreme Court’s admonition that “even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that [state] secrets are at stake.” After much deliberation, we reluctantly conclude this is such a case, and the plaintiffs’ action must be dismissed.

This is an extraordinarily depressing result, because the Jeppesen case, which had been dismissed by the District Court in 2008, had then been won on appeal before three judges in the Ninth Circuit Court of Appeals in April 2009. On that occasion the judges in question — Judges Michael Daly Hawkins, Mary M. Schroeder and William C. Canby, Jr. — had thoroughly demolished the government’s claim — first submitted by the Bush administration, and then, to the judges’ great surprise, slavishly copied by President Obama’s Justice Department — that it could dismiss the case by invoking the “state secrets” doctrine.

Unlike last Wednesday, when the majority agreed with the government regarding the “state secrets” doctrine, the panel of judges in April 2009 had no hesitation, in reviewing what they described as the “relatively thin history” of the doctrine, in dismissing the government’s reliance on two precedents because of their irrelevance to the Jeppesen case. One, Totten v. United States, involved a secret agreement between the government and a spy in the nineteenth century, and the other, United States v. Reynolds, from 1953, dealt with the prevention of “discovery of secret evidence when disclosure would threaten national security.”

As I explained in an article at the time:

[The judges, in an opinion written by Judge Hawkins] did this first by pinpointing the “clear error” the District Court made when it initially dismissed the case, when the court declared, “inasmuch as the case involves ‘allegations’ about the conduct of the CIA, the privilege is invoked to protect information which is properly the subject of state secrets privilege,” and also declared that “the very subject matter of this case is a state secret.” In contrast, the Appeals Court judges insisted that “The subject matter … is not a state secret, and the case should not have been dismissed at the outset.”

Dismissing the government’s arguments, they concluded that, although the government may be entitled to protect certain evidence in the interests of national security, it has no justification for suppressing judicial scrutiny of the case as a whole, particularly because some information relating to the case is already publicly available, and also because what the government is actually trying to do, with no legal precedent whatsoever, is to impose a blanket ban on all discussion of potential government wrongdoing.

In a particularly powerful passage, Judge Hawkins stated:

At base, the government argues … that state secrets form the subject matter of a lawsuit, and therefore require dismissal, any time a complaint contains allegations, the truth or falsity of which has been classified as secret by a government official. The district court agreed, dismissing the case exclusively because it “involves allegations” about [secret] conduct by the CIA.” This sweeping characterization of the “very subject matter” bar has no logical limit — it would apply equally to suits by US citizens, not just foreign nationals; and to secret conduct committed on US soil, not just abroad. According to the government’s theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law (emphasis added).

Elsewhere, as I also explained:

[T]he judges drew on Boumediene [v. Bush, the 2008 ruling granting the Guantánamo prisoners constitutionally guaranteed habeas corpus rights], in which the Supreme Court stated that, while “[s]ecurity depends upon a sophisticated intelligence apparatus,” it “subsists, too, in fidelity to freedom’s first principles [including] freedom from arbitrary and unlawful restraint and the personal liberty that is secured by the adherence to the separation of powers.” They also drew on Hamdi v. Rumsfeld, another important Guantánamo case in the Supreme Court (in 2004), in which the justices stated, “Separation-of-powers concerns take on an especially important role in the context of secret Executive conduct. As the Founders of this nation knew well, arbitrary imprisonment and torture under any circumstance is a ‘gross and notorious … act of despotism.’”

I was also particularly impressed by the following passage:

If the simple fact that information is classified were enough to bring evidence containing that evidence within the scope of the [state secrets] privilege, then the entire state secrets inquiry — from determining which matters are secret to which disclosures pose a threat to national security — would fall exclusively to the Executive branch, in plain contravention of the Supreme Court’s admonition that “[j]udicial control over the evidence in a case cannot be abdicated to the caprice of executive officers” without “lead[ing] to intolerable abuses.” … A rule that categorically equated “classified” matters with “secret” matters would, for example, perversely encourage the President to classify politically embarrassing information simply to place it beyond the reach of judicial process.

As I also explained:

What was notable about this passage was that it succinctly encapsulated the entire approach to “classified” information that was maintained by the Bush administration, and also mentioned invoking national security to prevent embarrassment — or, it could be said, to prevent the disclosure of crimes.

Sixteen months on, it is clear from reviewing Judge Hawkins’ opinion that nothing has fundamentally changed, and that therefore the majority that prevailed last week has simply repeated the “clear error” the District Court made when it initially dismissed the case, and has endorsed the President’s right to “classify politically embarrassing information simply to place it beyond the reach of judicial process,” albeit with more obvious hand-wringing.

If justice does still mean anything under the cowardly Obama administration, then the Jeppesen case will proceed to the Supreme Court, although, since Justice John Paul Stevens retired (PDF), there is no longer much hope for justice there either. Justice Stevens’ replacement, Obama’s former Solicitor General Elena Kagan, is contaminated by her involvement in national security arguments on behalf of her former boss, and will have to recuse herself from anything touching on the Bush administration’s toxic legacy. As a result, the Supreme Court is likely to split 4-4 on issues like the Jeppesen case, handing victory back to the senior administration officials who so desperately crave blanket immunity for the Bush administration’s torturers.

This is a profoundly depressing thought, especially as so many commentators have expressed their disgust at last week’s ruling. In an editorial entitled, “Torture Is a Crime, Not a Secret,” the New York Times lamented, “The decision diminishes any hope that this odious practice [“extraordinary rendition”] will finally receive the legal label it deserves: a violation of international law,” and the Los Angeles Times declared, “The decision to short-circuit the trial process is more than a misreading of the law; it’s an egregious miscarriage of justice. That’s obvious from a perusal of the plaintiffs’ complaint. One said that while he was imprisoned in Egypt, electrodes were attached to his earlobes, nipples and genitals. A second, held in Morocco, said he was beaten, denied food and threatened with sexual torture and castration. A third claimed that his Moroccan captors broke his bones and cut him with a scalpel all over his body, and poured hot, stinging liquid into his open wounds.”

For the ACLU, Ben Wizner stated:

This is a sad day not only for the torture victims whose attempt to seek justice has been extinguished, but for all Americans who care about the rule of law and our nation’s reputation in the world. To date, not a single victim of the Bush administration’s torture program has had his day in court. If today’s decision is allowed to stand, the United States will have closed its courtroom doors to torture victims while providing complete immunity to their torturers. The torture architects and their enablers may have escaped the judgment of this court, but they will not escape the judgment of history.

Moreover, on Monday, Scott Horton of Harper’s Magazine not only pointed out that the facts of the case “were established beyond any reasonable doubt without the need to turn to classified information,” but also reminded readers that, “Under the International Convention for the Protection of All Persons from Enforced Disappearance, which adopts the position that the US Justice Department took in 1946, the crime of disappearance connected to torture is a crime against humanity, with no statute of limitations and no defense of superior orders applicable.” Horton also reminded readers that, by signing the UN Convention Against Torture in 1987, the United States “made an unequivocal commitment to the international community to compensate those who are tortured by its agents” — and also, it should be noted, to bring the perpetrators to justice.

In addition, Horton pointed out that, in February this year, the Court of Appeal in London, which “had already viewed the formidable evidence” in Binyam Mohamed’s case, had brought to an end 18 months of Obama-style stonewalling by foreign secretary David Miliband regarding British knowledge of Mohamed’s torture by US agents, and had ordered the information to be publicly released, leading to a criminal investigation, which is ongoing, and, with a change of government, the announcement of a judicial inquiry into British complicity in torture — something that many of Obama’s supporters had hoped would happen in the US. As Horton explained, “The British court concluded, just as the Ninth Circuit was legally obligated to do, that state-secrecy claims could not be used to block discovery of evidence of crimes.”

Horton also explained that, although the position taken by Eric Holder’s Justice Department — that it is “protecting state secrets essential to our security” — is “risible, and half of the court saw through it,” what is really at stake is the possibility that evidence produced in the US could be used elsewhere. As he stated:

Twenty-three US agents have already been convicted for their role in a rendition in Milan. Prosecutors in Spain have issued arrest warrants for a further 13 US agents involved in a botched rendition case that touched on Spanish soil. Prosecutors in Germany have opened a criminal investigation into the use of Ramstein [Air Force Base] in connection with torture and illegal kidnappings. Prosecutors in Poland are pursuing a similar matter. And Prime Minister David Cameron was recently forced to brief President Obama on his decision to direct a formal inquiry which could lead to prosecutions tied directly to the subject matter of the Mohamed case. This is the remarkable background to the case decided by the Ninth Circuit, and remarkably not a single word about this appears anywhere in the opinion — or even in most of the press accounts about it.

While we wait to see what — if anything — happens next, I’d like to leave you with some sensible words regarding the legitimate scope of the “state secrets” doctrine, as written by Judge Hawkins in the opening paragraphs of his dissenting opinion last week, in which he was again joined by Judges Schroeder and Canby, and also by Judges Sidney R. Thomas and Richard A. Paez:

The majority dismisses the case in its entirety before Jeppesen has even filed an answer to Plaintiffs’ complaint. Outside of the narrow Totten context, the state secrets privilege has never applied to prevent parties from litigating the truth or falsity of allegations, or facts, or information simply because the government regards the truth or falsity of the allegations to be secret. Within the Reynolds framework, dismissal is justified if and only if specific privileged evidence is itself indispensable to establishing either the truth of the plaintiffs’ allegations or a valid defense that would otherwise be available to the defendant.

This is important, because an approach that focuses on specific evidence after issues are joined has the benefit of confining the operation of the state secrets doctrine so that it will sweep no more broadly than clearly necessary. The state secrets doctrine is a judicial construct without foundation in the Constitution, yet its application often trumps what we ordinarily consider to be due process of law. This case now presents a classic illustration. Plaintiffs have alleged facts, which must be taken as true for purposes of a motion to dismiss, that any reasonable person would agree to be gross violations of the norms of international law, remediable under the Alien Tort Statute. They have alleged in detail Jeppesen’s complicity or recklessness in participating in these violations. The government intervened, and asserted that the suit would endanger state secrets. The majority opinion here accepts that threshold objection by the government, so Plaintiffs’ attempt to prove their case in court is simply cut off. They are not even allowed to attempt to prove their case by the use of non-secret evidence in their own hands or in the hands of third parties.

It is true that, judicial construct though it is, the state secrets doctrine has become embedded in our controlling decisional law. Government claims of state secrets therefore must be entertained by the judiciary. But the doctrine is so dangerous as a means of hiding governmental misbehavior under the guise of national security, and so violative of common rights to due process, that courts should confine its application to the narrowest circumstances that still protect the government’s essential secrets. When, as here, the doctrine is successfully invoked at the threshold of litigation, the claims of secret are necessarily broad and hypothetical. The result is a maximum interference with the due processes of the courts, on the most general claims of state secret privilege. It is far better to require the government to make its claims of state secrets with regard to specific items of evidence or groups of such items as their use is sought in the lawsuit. An official certification that evidence is truly a state secret will be more focused if the head of a department must certify that specific evidence sought in the course of litigation is truly a secret and cannot be revealed without danger to overriding, essential government interests. And when responsive pleading is complete and discovery under way, judgments as to whether secret material is essential to Plaintiffs’ case or Jeppesen’s defense can be made more accurately. […]

This is an appeal from a Rule 12 dismissal, which means that the district court was required to assume that the well-pleaded allegations of the complaint are true, and that we “construe the complaint in the light most favorable to the plaintiff[s].” The majority minimizes the importance of these requirements by gratuitously attaching “allegedly” to nearly each sentence describing what Plaintiffs say happened to them, and by quickly dismissing the voluminous publicly available evidence supporting those allegations, including that Jeppesen knew what was going on when it arranged flights described by one of its own officials as “torture flights.” Instead, the majority assumes that even if Plaintiffs’ prima facie case and Jeppesen’s defense did not depend on privileged evidence, dismissal is required “because there is no feasible way to litigate Jeppesen’s alleged liability without creating an unjustifiable risk of divulging state secrets.” But Jeppesen has yet to answer or even to otherwise plead, so we have no idea what those defenses or assertions might be. Making assumptions about the contours of future litigation involves mere speculation, and doing so flies straight in the face of long standing principles of Rule 12 law by extending the inquiry to what might be divulged in future litigation.

As published on the Huffington Post. Cross-posted on Common Dreams, The Public Record, Uruknet, Cageprisoners,United Progressives, The Progressive Mind, Dandelion Salad and New Left Project.

For a sequence of articles discussing the use of torture in secret prisons, see: 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), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two) (April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison (May 2009), WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009), What The British Government Knew About The Torture Of Binyam Mohamed (August 2009), UK Judges Order Release Of Details About The Torture Of Binyam Mohamed By US Agents (October 2009), Dark Revelations in the Bagram Prisoner List (January 2010), UN Secret Detention Report Asks, “Where Are The CIA Ghost Prisoners?” (January 2010), Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims (April 2010), Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture (April 2010), UN Human Rights Council Discusses Secret Detention Report (June 2010), UN Secret Detention Report (Part Two): CIA Prisons in Afghanistan and Iraq (June 2010), UN Secret Detention Report (Part Three): Proxy Detention, Other Countries’ Complicity, and Obama’s Record (June 2010), and also see the extensive Binyam Mohamed archive.

Nine Human Rights Organizations and Lawyers’ Groups Propose Crucial Guidelines for British Torture Inquiry

Today, nine organizations, including Amnesty International, Cageprisoners, Liberty and Reprieve, published a letter written to Sir Peter Gibson, who was nominated by Prime Minister David Cameron to head the inquiry into UK involvement in the mistreatment of detainees held abroad, which was announced by the Prime Minister in July. In the letter, the NGOs explained that, as well as being prompt, independent, thorough and subject to public scrutiny, the inquiry must also involve the participation of the victims. “Survivors or victims must be involved in the process to ensure their right to effective investigation and redress, and special measures must be adopted to ensure this participation is supportive, safe and effective,” the nine NGOs stated.

The NGOs also explained that the inquiry’s mandate must include “the need to hold accountable those responsible for serious human rights violations,” including, if required, senior officials. They wrote that the inquiry “must be able to pronounce on state responsibility for knowledge and involvement in the serious human rights violations that have been alleged and to identify any individuals responsible for such abuses, including establishing the responsibility of superior officers for crimes committed by subordinates under their effective control.”

The full letter (available here as a PDF), which contains many more important recommendations, is published below:

The Rt. Hon. Sir Peter Gibson
c/o Ripley Building
26 Whitehall
London
SW1A 2WH
United Kingdom

08 September 2010

Re: Inquiry into alleged UK involvement in the mistreatment of detainees held abroad

Dear Sir Peter,

Following the announcement by Prime Minister David Cameron on 6 July of an inquiry into allegations of UK involvement in the mistreatment of detainees held abroad, the AIRE Centre, Amnesty International, British Irish Rights Watch, Cageprisoners, Justice, Liberty, Redress, Reprieve, and the Medical Foundation for the Care of Victims of Torture, write to offer a number of constructive comments to ensure the success of the inquiry.

A sufficiently empowered and transparent inquiry could discharge the United Kingdom’s duty to effectively investigate damaging allegations of knowledge and/or involvement by state actors or agents in the torture, ill-treatment or rendition of individuals that have arisen in the last decade. Such an inquiry could also play an important role in clarifying how involvement in torture, ill-treatment or rendition might be prevented in the future.

It is incumbent on governments to promptly and effectively investigate all allegations of torture and other related human rights abuses. In order to comply with basic human rights standards, it is essential that the inquiry be:

(1) Prompt. The earliest events that this inquiry must consider occurred at least a decade ago. Delay has increased the damage caused by allegations of involvement in torture and ill-treatment and has already reduced the potential for the inquiry to uncover the truth.

(2) Independent. The persons responsible for and carrying out the inquiry must be fully independent of any institution, agency or person who may be the subject of, or are otherwise involved in, the inquiry. Where allegations of involvement in torture and ill-treatment have been made, an independent response is particularly important in order to preserve confidence in the administration of justice.

(3) Thorough. The inquiry must be sufficiently empowered, staffed, and resourced to be thorough, wide-ranging and rigorous. It must be able to pronounce on state responsibility for knowledge and involvement in the serious human rights violations that have been alleged and to identify any individuals responsible for such abuses, including establishing the responsibility of superior officers for crimes committed by subordinates under their effective control. The inquiry must be capable of determining whether any conduct was unlawful and thus must be empowered to: secure all relevant evidence and testimony; interview victims and their families; question any eye witnesses; take statements of any officials alleged to have been involved in violations; secure appropriate medical reports; and consider any evidence which implicates any public officials or agents of the state.

(4) Subject to public scrutiny, with the participation of victims. The inquiry must be open to adequate public scrutiny. Survivors or victims must be involved in the process to ensure their right to effective investigation and redress, and special measures must be adopted to ensure this participation is supportive, safe and effective; non-governmental organizations have an important role to play in this regard. The participation of survivors, victims and civil society ensures the adherence of the inquiry to the rule of law, prevents any appearance of collusion in or tolerance of illegal acts, and helps safeguard victims’ rights to an effective remedy and reparations.

It is fundamental to the legality, credibility and utility of the inquiry that it complies with the United Kingdom’s international human rights obligations, including standards arising from the Convention against Torture, the European Convention on Human Rights, and the common law.

Terms of reference

The terms of reference of the inquiry must permit the consideration of the full range of alleged abuses. To that end, we propose the following terms:

The inquiry shall be empowered to inquire into knowledge of and involvement in the unlawful rendition of individuals, and torture and other cruel, inhuman or degrading treatment of detainees held abroad, by any UK state actors and agents, including corporate bodies, in the lead up to the 11 September 2001 attacks in the USA and subsequent to them. The inquiry shall examine both policy and practice, and make recommendations.

The development of satisfactory terms of reference — in consultation with the survivors and victims of abuses, their representatives, and interested non-governmental organizations — is essential to ensure that the inquiry provides effective redress for all victims of the alleged abusive practices, identifies the policies that gave rise to them, and suggests appropriate reforms.

Conduct of the inquiry

The UK government has noted a variety of reasons for establishing a forensic inquiry — the reputational damage to the country and the security services caused by the allegations; the desire on the part of the security services to establish their integrity; the resource burden on the security services in lengthy court cases; exploitation of the allegations by extremists for propaganda purposes; and the need to systematically get to the truth and ensure that such abuses will not happen again. Our organizations would add to this list the requirement of effective redress for any victims of these alleged abuses and the need to hold accountable those responsible for serious human rights violations.

In order for the inquiry to fulfil its purposes, we recommend the following:

(1) The inquiry must appoint a strong legal team with sufficient expertise to deal with the range of human rights, intelligence, and secrecy issues that it is likely to face;

(2) The presumption must be that each stage of the inquiry will be public, with as much evidence as possible to be heard and considered in public;

(3) The inquiry must ensure that survivors and victims have standing as parties to the inquiry and have a right to legal representation funded by the inquiry. Survivors, victims and their representatives must be kept informed of all information relevant to the investigation and have access to hearings and the ability to make submissions;

(4) Other interested parties, including the intelligence services, must also have standing and the right to legal representation funded by the inquiry. They and their representatives must be kept informed of all information relevant to the investigation; and have access to hearings and the ability to make submissions;

(5) The inquiry must require that all relevant documents be disclosed to the inquiry by the government; the head of the inquiry must have the power to decide whether or not to make such documents public;

(6) The inquiry must aim to achieve maximum possible disclosure. Any determination that certain information should be kept confidential, including on the grounds of national security, should be made applying limited and precisely defined grounds that are specified in advance; an independent mechanism should be developed to ensure that any decision by the inquiry panel to withhold such information is in the public interest;

(7) The inquiry must ensure that any invocation of secrecy or confidentiality on the part of the government, its agents, or the inquiry does not: prevent an independent, impartial, and thorough investigation of alleged human rights violations; prevent the government and individual perpetrators from being held accountable; prevent a victim from receiving an effective remedy, including reparation; or prevent full and public disclosure of the truth;

(8) The inquiry must be empowered to require the production of evidence, subject to ordinary rules of admissibility, and must also be able to require a person to attend the inquiry to give evidence or to provide a written statement. It must be an offence for a person to fail to do anything that is required of him or her regarding the production of evidence. It must be an offence to do anything to distort or alter evidence provided to the inquiry;

(9) The inquiry panel must request the cooperation of agents and officials of foreign states who can provide relevant evidence, and that the government should support such requests;

(10) The inquiry panel should be empowered to enforce cooperation from corporations doing business in the UK who are alleged to have had knowledge of or been involved in any abuses that are the subject of the inquiry;

(11) It is imperative that the inquiry report be published, and that any redactions for national security reasons be agreed by the inquiry panel and be subject to review by a court. The inquiry must be empowered to not only establish particular facts, practices and policies, but should also consider the adequacy of measures in place to prevent the occurrence of any wrongdoing in the future. The final report must be made public and should at a minimum include the conclusions and recommendations based on findings of fact and applicable law, in sufficient detail to satisfy the requirement of full and public disclosure of the truth about UK responsibility for the human rights violations in question.

Involvement of Non-Governmental Organizations

The direct participation of civil society is imperative for the proper conduct of this inquiry.

First, the allegations of UK involvement in illegal conduct are wide ranging in time and nature. Various NGOs have been at the forefront of establishing such patterns of conduct, and are in a position to assist the inquiry in designing its scope and in pursuing certain lines of inquiry.

Second, the participation of survivors and victims, which is a requisite component of an effective, human rights-compliant investigation, is complicated in many instances. For example, some who might have substantial evidence of great relevance to the terms of the inquiry remain in illegal detention in Guantánamo Bay and elsewhere. It is important that their voices should be heard. [Note: This is a reference, in particular, to Shaker Aamer, the last British resident in Guantánamo, who is still held, despite being cleared for release in 2007, and whose knowledge is particularly important to the inquiry].

Third, the credibility of this inquiry rests on the extent to which it properly engages with public concerns about these most serious allegations. Allowing for close NGO scrutiny will ensure that the inquiry is seen to be robust and fair.

NGOs should have the opportunity to be present throughout the inquiry, including representation by counsel, and have the opportunity to make submissions regarding any aspect of the inquiry.

Yours sincerely

The AIRE Centre
Amnesty International
British Irish Rights Watch
Cageprisoners
Justice
Liberty
The Medical Foundation for the Care of Victims of Torture
Redress
Reprieve

cc:
The Rt. Hon. Dame Janet Paraskeva
The Rt. Hon. Peter Riddell
The Rt. Hon. David Cameron, Prime Minister
The Rt. Hon. Nick Clegg, Deputy Prime Minister
The Rt. Hon. Baroness Neville-Jones
Sir Gus O’Donnell
Sir Peter Ricketts

Note: See here for Reprieve’s criticism of Sir Peter Gibson, published in July, and also see here and here for revelations, relevant to the inquiry, that were issued by the High Court in July as part of six former Guantánamo prisoners’ claim for damages against the British government. Also of relevance is the extensive archive of articles about Binyam Mohamed.

Guantanamo, Shaker Aamer, UK complicity in torture, UK politics
14.9.10
3 Comments

Obama’s Hollow Guantánamo Apology

On Friday, in his first press conference since May, President Obama was concerned primarily with the economy, but also found time to answer a couple of questions about Guantánamo that were put to him by Ann Compton of ABC News Radio. For the most part, the media overlooked this section of the press conference, focusing only on the President’s admission that his administration had “fallen short” on the promised closure of Guantánamo by January this year, but his comments as a whole deserve analysis, because, behind this particular soundbite, he mostly tiptoed around the reasons for this failure. Below I reproduce Ann Compton’s questions, Obama’s answers, and my own commentary on the significance of his remarks.

Ann Compton: Mr. President, what does it say about the status of Americans’ system of justice when so many of those who are thought to be plotters for September 11th or accused of — suspected terrorists — are still awaiting any kind of trial? Why are you still convinced that a civilian trial is correct for Khalid Sheikh Mohammed? And why has that stalled? And will Guantánamo remain open for another year?

President Obama: Well, you know, we have succeeded on delivering a lot of campaign promises that we made. One where we’ve fallen short is closing Guantánamo. I wanted to close it sooner. We have missed that deadline. It’s not for lack of trying. It’s because the politics of it are difficult.

My analysis: This is partly an understatement, but it is also somewhat evasive. Certainly, lawmakers — of both parties — must bear the blame for refusing to endorse the President’s plan to close Guantánamo by, essentially, moving it to a new location in Illinois, but this was not without its own problems – primarily, that those regarded as too dangerous to release, but against whom there is insufficient evidence to press charges, would be held alongside those designated for trials, thereby enshrining President Bush’s policy of indefinite detention without charge or trial on the US mainland.

President Obama’s shocking decision to endorse indefinite detention without charge or trial for some prisoners (whether at Guantánamo or on the US mainland) first surfaced last May, when he stated publicly that “preventive detention” was back on the table (along with the reviled Military Commission trial system), and was confirmed in January this year, when his interagency Guantánamo Review Task Force recommended that 35 prisoners should be tried, 48 should be held without charge or trial, and the rest should be released.

In addition, lawmakers must share the blame with the President for legislating to prevent the transfer of any prisoner to the US mainland for any reason other than to face trials. This scuppered any possibility of rehousing cleared prisoners in the US, who cannot be repatriated because of fears that they will be tortured in their home countries. As a result, it has made the job of finding new homes for these men in third countries more difficult, because of the correct perception that the US is being hypocritical, asking others to address problems for which the US itself refuses to accept responsibility.

However, it should not be forgotten that Obama allowed the Justice Department to oppose the court-ordered release of 17 Uighurs (Muslims from China’s oppressed Xinjiang province) into the US in February 2009, and that three months later he pulled the plug on a plan developed by White House Counsel Greg Craig, which was close to fruition, and involved bringing a few of the Uighurs to live in the US, to pave the way for further releases.

And finally, President Obama must bear the blame for capitulating to hysteria, in the wake of the failed Christmas Day plane bombing last year, by declaring a moratorium on the release of any cleared prisoners to Yemen (whether cleared by the Task Force, by the US courts following their habeas corpus petitions, or both), simply because the would-be bomber, Umar Farouk Abdulmutallab, had been recruited in Yemen. This is nothing less than guilt by nationality — and enormously insulting to the Yemeni people as a whole — and the President should have been bold enough to resist it.

President Obama: Now, I am absolutely convinced that the American justice system is strong enough that we should be able to convict people who murdered innocent Americans, who carried out terrorist attacks against us. We should be able to lock them up and make sure that they don’t see the light of day.

We can do that. We’ve done it before. We’ve got people who engaged in terrorist attacks who are in our prisons — maximum-security prisons all across the country. But, you know, this is an issue that has generated a lot of political rhetoric. And people — understandably, you know — are fearful.

But one of the things that I think is worth reflecting on after 9/11 is, you know, this country is so resilient; we are so tough. We can’t be frightened by a handful of people who are trying to do us harm, especially when we’ve captured them and we’ve got the goods on them.

My analysis: The resistance to Attorney General Eric Holder’s announcement in November 2009 that the five men accused of involvement in the 9/11 attacks (including Khalid Sheikh Mohammed) would face a federal court trial in New York was so severe that the administration has put off dealing with it, refusing to confirm or deny whether federal court trials will proceed, whether they will be in New York or elsewhere, or even whether the trials will be scrapped, and the men will face trials by Military Commission instead.

In this passage, the President inadvertently revealed how sensitive the topic of federal court trials is, refusing to refer directly to the courts, and noting how the United States “should be able to convict people who murdered innocent Americans,” and “should be able to lock them up” (my italics), even though the men in question have been held without charge or trial for up to eight and a half years. In addition, his insecurity can be seen in his assurance that “we’ve got the goods on them,” in which, essentially, he pre-judges their guilt (as he and Attorney General Eric Holder did when they were first charged), as an attempt to assure critics that the federal court system will not somehow lead to their release.

President Obama: So, you know, I’ve also said that there are going to be circumstances where a military tribunal may be appropriate. And the reason for that is — and I’ll just give a specific example. There may be situations in which somebody was captured in theater, is now in Guantánamo; it’s very hard to piece together a chain of evidence that would meet some of the evidentiary standards that would be required in an Article III court, but we know that this person is guilty. There’s sufficient evidence to bring about a conviction. So what I’ve said is, you know, the military commission system that we set up, where appropriate, for certain individuals that it would be difficult to try in Article III courts, for a range of reasons, we can reform that system so that it meets the highest standards of due process and prosecute them there.

And so I’m prepared to work with Democrats and Republicans, and we, over the course of the last year, have been in constant conversations with them about setting up a sensible system in which we are prosecuting, where appropriate, those in Article III courts; we are prosecuting others, where appropriate, through a military tribunal. And in either case, let’s put them in prisons, where our track record is, they’ve never escaped.

My analysis: Unwilling to push federal court trials to the top of the agenda, President Obama instead diverted attention to a discussion of trials by Military Commission, ignoring the fact that numerous legal experts have criticized the Commissions for being a poor substitute for federal court trials, and also for enshrining a three-tier judicial system for the Guantánamo prisoners, with federal court trials for some (when the evidence is regarded as being particularly robust), Military Commissions when the evidence is weaker, and indefinite detention without charge or trial when the evidence is too weak or compromised to be used at all Noticeably, the President cannily omitted mentioning this last point, which, understandably, has enraged everyone who opposed President Bush’s assertion that he could hold prisoners indefinitely without charge or trial.

His comment that Military Commissions are appropriate when “we know that this person is guilty” may be another example of reassuring those who fear — unjustifiably — that his administration may be less than rigorous in its appraisal of the remaining prisoners’ significance, but along the way it also dangerously undermines the presumption that suspects are innocent until proven guilty.

It also undermines the work undertaken by judges in the District Court in Washington D.C. Over the last two years, in examining the prisoners’ habeas corpus petitions, judges have ruled, in 38 out of 54 cases, that the government has failed to establish that the men in question were involved with either al-Qaeda or the Taliban. In doing so, the judges have demonstrated an ability to examine evidence objectively — involving analyzing whether or not statements were derived through torture, unreliable witnesses and intolerable levels of hearsay — that is missing from the President’s bald assertions of guilt.

It is also noticeable that, although the President finally mentioned federal court trials by name, he moved on swiftly to point out that the administration has been working with both Republicans and Democrats to resolve any difficulties, even though lawmakers have actually demonstrated a profound unwillingness to help, and, in significant numbers, support Military Commissions rather than federal court trials. The great irony here is that, in their haste to tar these men as warriors rather than as criminals, lawmakers are forgetting, or ignoring that the federal courts have an impressive track record in dealing with terrorist-related offenses, and in particular, with providing material support to terrorism, whereas the Military Commissions have been something close to an abject failure, with only four convictions throughout their long and troubled history.

Sadly, in his desire to play the Military Commissions card, the President failed to acknowledge these problems, and also failed to acknowledge that providing material support to terrorism is an invented war crime (invented by Congress in the Military Commissions Act of 2006, and maintained in the latest legislation). He also failed to acknowledge that, last summer, senior officials from the Justice Department and the Pentagon told Congress that they believed that any convictions on these charges in the Military Commissions would probably be overturned on appeal.

President Obama: And by the way, just from a purely fiscal point of view, the costs of holding folks in Guantánamo is massively higher than it is holding them in a supermax maximum security prison here in the United States.

My analysis: This is certainly true, as Carol Rosenberg explained in the Miami Herald, when she wrote, “The Pentagon reports the annual cost of running the prison camps, staffed by a variety of US military troops, at $116 million. With a current population of 176 war-on-terror detainees, that’s more than $650,000 each.” By contrast, Bureau of Prisons spokeswoman Traci Billingsley told Rosenberg that “it costs nearly $5,575 a year to keep a prisoner in federal detention,” although she added, “A Supermax prisoner’s cost might be a bit higher, because of additional security” (Note: On Monday, Bureau of Prisons spokesman Edmond Ross pointed out that the correct figure is $27,251 a year per federal prisoner).

What is unknown is whether, when dealing with the fears of terrorism that have been persistently stoked for nine years by unscrupulous lawmakers and media outlets, the American people are concerned by Guantánamo’s cost. After all, as reports on Afghanistan have recently demonstrated, with only a maximum of 100 members of al-Qaeda in Afghanistan, and 1,000 US soldiers for each al-Qaeda member at $1 million per soldier (the cost, on top of a soldier’s salary, of “getting the soldier to Afghanistan, getting his equipment to Afghanistan, and moving the soldier around once in the country”), it actually costs the US $1 billion a year for the pursuit of each al-Qaeda member.

Ann Compton: Is that all for Khalid Sheikh Mohammed? Will that trial ever happen?

President Obama: Well, I think it needs to happen. And we’re going to work with members of Congress — and this is going to have to be on a bipartisan basis — to move this forward in a way that is consistent with our standards of due process, consistent with our Constitution, consistent also with our image in the world of a country that cares about the rule of law. You can’t underestimate the impact of that.

My analysis: With this answer, the President finally admitted that he believes that the appropriate venue for trying Khalid Shiekh Mohammed and his alleged 9/11 co-conspirators is federal court, although he immediately rushed to point out, yet again, that this would involve working closely, and on a bipartisan basis, with Congress, even though, as outlined above, Congress has shown no appetite whatsoever for working with the President on this issue.

President Obama: You know, al-Qaeda operatives still cite Guantánamo as a justification for attacks against the United States — still, to this day. And you know, there’s no reason for us to give them that kind of talking point when, in fact, we can use the various mechanisms of our justice system to prosecute these folks and to make sure that they never attack us again.

My analysis: This is true, but when analyzed in conjunction with the evasions and omissions outlined above, it fails to provide any reassurance that Guantánamo will close anytime soon, thereby depriving al-Qaeda of a potent tool for recruitment. Setting a new deadline for Guantánamo’s closure would do the trick, but to do that the President would have to make promises that he would be unable to keep — both because of the seemingly implacable opposition he faces from lawmakers, and also because of his own inability to make his own case strongly enough when it really counted, in the first five months of his Presidency. Many of his problems can be traced back to the speech on national security issues that he made in May 2009, when he began distancing himself from the unwavering opposition to Bush’s policies advanced by Greg Craig, and reintroduced Military Commissions and indefinite detention without charge or trial for some of the men still held at Guantánamo.

Had he stuck to just two options — federal court trials or the release of prisoners — much of the “difficult” politics that he mentioned at the start of his press conference on Friday might have been overcome, and the closure of Guantánamo might have remained feasible rather than being, as it appears now, a failed dream whose day has passed.

And sadly, while this sad state of affairs continues to besmirch America’s name abroad, the real losers are the 176 men still held at Guantánamo, who, nine years after the 9/11 attacks, are still waiting for justice, whether they are “guilty” or not.

As published exclusively on the website of the Future of Freedom Foundation. Cross-posted on The Public Record, The Smirking Chimp, Eurasia Review, Cageprisoners and New Left Project.

Good News from Bermuda: Ex-Guantánamo Uighurs Settling In Well

In the Daily News in New York — not a paper known for its Guantánamo coverage — staff writer Christine Doyle delivered a heartwarming article on Sunday, after a meeting in Bermuda with Khalil Mamut, one of four Uighurs (Muslims from China’s oppressed Xinjiang province) released from Guantánamo last June. This is not the first article to be published about the Uighurs in Bermuda (I have covered previous examples here and here), but it is always good to see an American newspaper taking the time to remind citizens that former Guantánamo prisoners are human beings, and that mistakes were made in the “War on Terror” — although on this point the Uighurs are only the tip of an iceberg of incompetence that is rarely acknowledged in the mainstream media. It is also, of course, deeply reassuring to hear that, in Bermuda at least, former prisoners given new homes in third countries are adjusting well to their new lives, as other stories — from Bulgaria, Slovakia and Spain — have not been as encouraging, for a variety of reasons.

“I want to stay here,” Khalil Mamut told Christine Doyle, after apparently “eyeing up a leggy blond” in the lobby of the Hamilton Princess hotel in Bermuda’s capital. Doyle explained that Mamut, the best English speaker of the four men released last June, who “acts as their spokesman,” had “adjusted well” after 15 months in Bermuda, even though there are only around 500 Muslims on the island, and no Uighur community. As she described it, Mamut “embraces the diversity,” telling her, “There is a proverb in my language: If you go to the blind man’s country, close one of your eyes. It means you have to adapt and adjust, and that’s what we do.”

Mamut was clearly unwilling to talk about his experiences in US custody. “It doesn’t give me any benefit,” he told Doyle. “I’ve started my new life.” However, he happily explained that, at the top of his “to do” list was finding a wife. “Want to help me?” he asked Doyle, cheekily, adding, “I have the intention to make a family here, if I find a girl,” and explaining that he has “dabbled in online dating.”

Although the arrival of the Uighurs caused “a political firestorm” last June (much of which appeared to have been manufactured by the political opposition in Bermuda), Doyle confirmed that “the controversy was short-lived,” although Mamut told her that, initially, he and his companions — Abdullah Abdulqadir, Ablikim Turahun and Salahadin Abdulahad — were “frightened.” He explained, “What really amazed us were the reporters and the press. We were really in a panic.”

As Doyle explained, however, “Residents have to come embrace the men.” Former cabinet minister Dale Butler stated, “They seem to be adjusted and happy and grateful,” and, as Doyle herself described it, “For the men, simple pleasures give the most joy: being able to roam the paradise island at leisure, swim in the turquoise waters and play soccer with locals.”

Khalil Mamut told her, “Sometimes, at midnight, if there’s a nice breeze outside and we want fresh air, it’s OK. Nobody says nothing.” After seven years in Guantánamo, it appears that the men are still relishing their freedom. “Now, we can go wherever we want,” he added.

Describing their daily lives, Doyle continued: “From Monday to Friday, they ride their scooters to work at the sprawling Port Royal Golf Course, where they tend the bunkers, greens and fairways. In the evenings and on weekends, they go to the beach, take turns cooking, or head to the Hamilton waterfront to browse shops and go to restaurants.”

Mamut told her, “We found the people here so friendly,” but acknowledged that, although they “lead contented lives,” they “wish they could travel.” The stumbling block to this is the British government, which claimed not to have been consulted over the decision to offer the men a home last June, even though Bermuda is a British Overseas Territory.

Christine Doyle explained that, because the British government “has not granted the Uighurs travel documents or passports … they can’t leave the island even temporarily,” and Mamut told her, “Our lawyer told us after one year we would be given passports, but now that is being prevented by law.” In June, when the Uighurs’ story was last reported, Bermudian Senator Walton Brown suggested that it was only a matter of time, and stated that he was “confident the UK will ultimately do the right thing and grant the men the chance to travel” and even “to reside in Britain if they chose to do so.”

Given that Khalil Mamut and his companions were never charged with any offence, were deprived of their liberty in an experimental prison for terror suspects for over seven years, and were then ordered released by a US court, after the Bush administration gave up all pretense that they were a threat to the US or its allies, it is to be hoped that Sen. Brown is correct, although no one should underestimate the British government’s ability to be resolutely cold-hearted, even though the Uighurs have effortlessly demonstrated that they are hard-working, law-abiding residents of Bermuda, and a threat to nobody.

A campaign to grant the Uighurs passports would be a good idea, but as supporters of a number of British residents in Guantánamo learned through long years of campaigning, culminating in the release of Bisher al-Rawi, Jamil El-Banna and Omar Deghayes in 2007, public pressure, though significant, is only part of a process that generally needs to involve the threat of high-profile, and embarrassing legal action to succeed.

In the case of Shaker Aamer, the last British resident in Guantánamo, even the revelation of embarrassing details in court about British complicity in his torture in US custody in Afghanistan has not secured his release, even though he was cleared for release by the US authorities in early 2007. In the UK, however, pressure groups continue to harangue the government to secure his return, and if the Uighurs are to be allowed to travel freely — as they surely should be able to — then similar pressure may well be required.

For now, however, it is, at least, reassuring to hear that they are successfully making a new home in Bermuda, even though five of their compatriots — whose release was also ordered by a US judge in October 2008 — are still held.

Guantanamo, Life after Guantanamo, Uighurs in Guantanamo
14.9.10
5 Comments

Event: Eid Without Aafia Siddiqui, includes Andy Worthington Interviewing Former Guantánamo Prisoners Ruhal Ahmed and Shafiq Rasul, London, September 18, 2010

At the end of this month, Dr. Aafia Siddiqui, a Pakistani neuroscientist, is due to be sentenced in New York, after a trial earlier this year resulted in her conviction for opening fire on FBI agents and US military personnel in a police station in Ghazni, Afghanistan, where she was being interrogated in 2008. I have written about Aafia’s case previously — and recommend anyone who wants to know more to visit the Justice for Aafia Coalition website — as the pieces of the story simply don’t add up.

Aafia and her three children disappeared in Karachi on March 30, 2003, and according to numerous reports, she was then held in US custody in the prison at Bagram airbase in Afghanistan, where she was subjected to torture, while two of her children were held in other facilities. The third, Suleiman, who was just a baby, may have died in the initial kidnapping, as he has not reappeared, even though Aafia’s two other children — Ahmed and Mariam — mysteriously resurfaced in September 2009 and in April this year

According to the US authorities, Aafia was never in US custody prior to July 2008, when she reportedly appeared out of nowhere and allegedly fired on the FBI agents and US military personnel who had apprehended her. According to this account, she failed to hit any of her targets, but what is certain is that she received two gunshot wounds in the abdomen. However, the claim that Aafia tried to shoot at her captors has always appeared to be a deeply suspicious story, and, during the trial that began in New York in January this year, after she was, essentially, “rendered” to the US from Afghanistan, it was noticeable that her lawyers stated that “there were no fingerprints or forensic evidence on the gun that would indicate Siddiqui ever even held it.”

As Press TV explained in a recent article, “Siddiqui vehemently denied all the charges against her during the trial, calling them ‘ridiculous’ and insisting that she was framed, jailed, and tortured by US agents in Pakistan and Afghanistan. It was ‘pure psychological, emotional torture,’ she said, describing her situation. ‘I thought it was a continuation of what had been done to me in my secret prison history.’”

With the Pakistani government refusing to act on Aafia’s behalf, and fears that she will receive a life sentence on September 23, “Eid Without Aafia” is an important event to mobilize support for Aafia, and I am delighted to be taking part. Full details of the event are below:

Justice for Aafia Coalition (JFAC) presents
EID WITHOUT AAFIA
Saturday September 18, 2010, 2pm-7.30pm, Salaam Centre, 313-319 Katherine Road, Forest Gate, London, E7 8PJ.

As Muslims around the world celebrate Eid ul-Fitr in the comfort of their homes and amidst the company of family and friends, we remember Aafia Siddiqui as she completes her eighth Ramadan in custody and spends Eid alone once again in a cold cell in a New York detention facility, far removed from any contact with her loved ones. Join us to find out how you can help Aafia in the final days before her sentencing hearing, scheduled for September 23.

Speakers:

Former Guantánamo detainees Shafiq Rasul and Ruhal Ahmed in conversation with Andy Worthington (Author, The Guantánamo Files)
Ilyas Townsend (JFAC)
Ustadh Uthman Lateef (Hittin Institute)
Hamza Tzortzis (iERA, Hittin Institute)
Ustadh Abdullah Hasan (Islamic Forum Europe)
Chaired by barrister Rizwan Hussain

There will also be a charity auction, with all proceeds going towards Aafia’s defence, and a tribute to Faraj Hassan Alsaadi, held without charge or trial in the UK for eight years, who died in a motorbike accident on August 16, just eight months after he was finally released.

Nearest tube: East Ham/Upton Park
Buses: 325, 238, 376

For further information, please call 07903 388875 (brothers) or 07906 206211 (sisters) or email.

Aafia Siddiqui, Guantanamo, Guantanamo media
13.9.10
7 Comments

Juan Cole and Robert Fisk on 9/11

As an accompaniment to my article examining the aftermath of the terrorist attacks of September 11, 2001, “On the 9th Anniversary of 9/11, A Call to Close Guantánamo and to Hold Accountable Those Who Authorized Torture,” I’m cross-posting two other articles that provide important perspectives on the horrendous events of that day, and their bitter aftermath.

In the first, Juan Cole, Middle East expert and author of Engaging the Muslim World, provides a much-needed response to the Islamophobia being stirred up in the US regarding the so-called “Ground Zero Mosque” and the Qur’an burning threats of a publicity-hungry preacher in Florida, pointing out how the Qur’an explicitly prohibits acts of terrorism — and how, by extension, Osama bin Laden “is not a proper Muslim, and his actions contravened Islamic law. He is a Jim Jones-type cultist with a fringe, violent People’s Temple.” In the second article, Robert Fisk, the Independent’s Middle East correspondent, provides his own, inimitable take on the aftermath of the 9/11 attacks, asking, “Did 9/11 make us all go mad?” and lamenting the two wars and the hundreds of thousands dead as a result of America’s response.

For other good articles, see Jason Linkins’ astute analysis, for the Huffington Post, of how the media created global hysteria over the Qur’an burning — instead of simply ignoring the Pastor Terry Jones — and Ted Koppel’s analysis of America’s self-defeating overreaction to the attacks in an op-ed for the Washington Post.

Top Ways 9/11 Broke Islamic Law
By Juan Cole, Informed Comment, September 11, 2010

On the ninth anniversary of the September 11 attacks, it is clear that al-Qaeda was a tiny fringe terrorist movement, not a globe-straddling threat to Western societies. The organization has been decisively disrupted and now lacks command and control. Its leader, Osama Bin Laden, has not been seen in a video since 2004, and is either dead or horribly disfigured. Its number 2, Ayman al-Zawahiri, is dangerous only in the way that any other terrorist crank is, firing off crackpot messages to his dwindling band of followers from time to time. With the startling rise of anti-Muslim bigotry in the United States, fanned in large part by Republican Party fearmongering, it is worthwhile underlining the ways in which September 11 contravened Islamic values and Islamic law. (For a modernist, liberal interpretation, see “Jihad and the Islamic Law of War” (PDF)).

1. It is forbidden to attempt to impose Islam on other people. The Qur’an says, “There is no compulsion in religion. The right way has become distinct from error.” (The Cow, 2:256). Note that this verse was revealed in Medina and was never abrogated by any other verse of the Qur’an. Islam’s holy book forbids coercing people into adopting any religion. They have to willingly choose it.

2. Islamic law forbids aggressive warfare. The Qur’an says, “But if the enemies incline towards peace, do you also incline towards peace. And trust in God! For He is the one who hears and knows all things.” (8:61) The Qur’an chapter “The Cow, 2:190,” says, “Fight in the way of God against those who fight against you, but begin not hostilities. Lo! God loveth not aggressors.”

3. In Islamic war, not just any civil engineer can declare or launch a war. It is the prerogative of the duly constituted leader of the Muslim community that engages in the war. Nowadays that would be the president or prime minister of the state.

4. The killing of innocent non-combatants is forbidden. According to Sunni tradition, ‘Abu Bakr al-Siddiq, the first Caliph, gave these instructions to his armies: “I instruct you in ten matters: Do not kill women, children, the old, or the infirm; do not cut down fruit-bearing trees; do not destroy any town …” (Malik’s Muwatta’, “Kitab al-Jihad.”)

5. Muslim commanders must give the enemy fair warning that war is imminent. The Prophet Muhammad at one point gave 4 months notice. Sneak attacks are forbidden.

The World Trade Center had a mosque in it, which Bin Laden destroyed, and he killed dozens of innocent Muslims in the attack along with thousands of others. All of this is an abomination is Islamic law.

By the laws of classical Islam and the instructions of the Qur’an, then, the September 11 act of terrorism was illegal. It is not an affirmation of Islam but a departure from its laws of war. That is why, contrary to popular belief, Muslim authorities have roundly condemned al-Qaeda’s actions in no uncertain terms. See also the Amman statement, to which large numbers of prominent Sunni and Shiite leaders subscribed.

Al-Qaeda can legitimately be seen as not a Muslim group at all. Osama Bin Laden openly said of the hijackers that “those young men had no fiqh [Islamic law]” — i.e. they were lawless secret operatives rather than proper Muslims. Khalid Sheikh Mohammed when in the Philippines lived like James Bond, going to nightclubs with a pure silver cigarette lighter. Several of the hijackers frequented strip clubs. Ziad Jarrah was from a secular family and had a Turkish live-in girlfriend. Many of these operatives simply were not fundamentalists but rather an odd sort of Muslim nationalist. Bin Laden did not target the US because of its way of life, but because he said it imposed a boycott on Iraq in the 1990s that killed hundreds of thousands of Iraqi children, because it encouraged the Saudi regime to pump more oil than it should so as to keep the price low, because it stationed troops in the kingdom. Even if Bin Laden hadn’t been a crackpot with conspiracy theories, these points are not civilizational or religious issues. They are just politics.

Bin Laden wanted a big fight between the Muslim world and the United States. He wanted the US mired in Afghanistan. He is a nobody, leading a tiny group of cells now mostly disrupted. But the US has sunk itself into a quagmire of wars in a vast over-reaction to a terrorist attack. Without the US invasion and occupation of Iraq, al-Qaeda might well have just disappeared even further into insignificance than it did. And now, instigated by the Republican Party, US society is moving toward an Islamophobia that could well set it at odds with 1.5 billion Muslims.

Bin Laden is not a proper Muslim, and his actions contravened Islamic law. He is a Jim Jones-type cultist with a fringe, violent People’s Temple. Americans need to stop blaming Islam, and to recognize that most Muslims in the world are their friends, and that American Muslims are patriots and contributors to our well-being.

Every time Americans tear down Islam, Bin Laden gets a little bit of what he wanted.

Nine years, two wars, hundreds of thousands dead — and nothing learnt
By Robert Fisk, The Independent, September 11, 2010

Did 9/11 make us all go mad? How fitting, in a weird, crazed way, that the apotheosis of that firestorm nine years ago should turn out to be a crackpot preacher threatening another firestorm with a Nazi-style book burning of the Koran. Or a would-be mosque two blocks from “ground zero” — as if 9/11 was an onslaught on Jesus-worshipping Christians, rather than on the atheist West.

But why should we be surprised? Just look at all the other crackpots spawned in the aftermath of those international crimes against humanity: the half-crazed Ahmadinejad, the smarmy post-nuclear Gaddafi, Blair with his crazed right eye and George W. Bush with his black prisons and torture and lunatic “war on terror”. And that wretched man who lived — or lives still — in an Afghan cave and the hundreds of al-Qaedas whom he created, and the one-eyed mullah — not to mention all the lunatic cops and intelligence agencies and CIA thugs who failed us all — utterly — on 9/11 because they were too idle or too stupid to identify 19 men who were going to attack the United States. And remember one thing: even if the Rev. Terry Jones sticks with his decision to back down, another of our cranks will be ready to take his place.

Indeed, on this grim ninth anniversary — and heaven spare us next year from the 10th — 9/11 appears to have produced not peace or justice or democracy or human rights, but monsters. They have prowled Iraq — both the Western and the local variety — and slaughtered 100,000 souls, or 500,000, or a million; and who cares? They have killed tens of thousands in Afghanistan; and who cares? And as the sickness has spread across the Middle East and then the globe, they — the air force pilots and the insurgents, the Marines and the suicide bombers, the al-Qaedas of the Maghreb and of the Khalij and of the Caliphate of Iraq and the special forces and the close air support boys and the throat-cutters — have torn the heads off women and children and the old and the sick and the young and healthy, from the Indus to the Mediterranean, from Bali to the London Tube; quite a memorial to the 2,966 innocents who were killed nine years ago. All in their name, it seems, has been our holocaust of fire and blood, enshrined now in the crazed pastor of Gainesville.

This is the loss, of course. But who’s made the profit? Well, the arms dealers, naturally, and Boeing and Lockheed Martin and all the missile lads and the drone manufacturers and F-16 spare parts outfits and the ruthless mercenaries who stalk the Muslim lands on our behalf now that we have created 100,000 more enemies for each of the 19 murderers of 9/11. Torturers have had a good time, honing their sadism in America’s black prisons — it was appropriate that the US torture centre in Poland should be revealed on this ninth anniversary — as have the men (and women, I fear) who perfect the shackles and water-drowning techniques with which we now fight our wars. And — let us not forget — every religious raver in the world, be they of the Bin Laden variety, the bearded groupies in the Taliban, the suicide executioners, the hook-in the arm preachers, or our very own pastor of Gainesville.

And God? Where does he fit in? An archive of quotations suggests that just about every monster created in or after 9/11 is a follower of this quixotic redeemer. Bin Laden prays to God — “to turn America into a shadow of itself”, as he told me in 1997 — and Bush prayed to God and Blair prayed — and prays — to God, and all the Muslim killers and an awful lot of Western soldiers and Dr. (honorary) Pastor Terry Jones and his 30 (or it may be 50, since all statistics are hard to come by in the “war on terror”) pray to God. And poor old God, of course, has had to listen to these prayers as he always sits through them during our mad wars. Recall the words attributed to him by a poet of another generation: “God this, God that, and God the other thing. ‘Good God,’ said God, ‘I’ve got my work cut out’.” And that was just the First World War …

Just five years ago — on the fourth anniversary of the twin towers/ Pentagon/ Pennsylvania attacks — a schoolgirl asked me at a lecture in a Belfast church whether the Middle East would benefit from more religion. No — less religion! — I howled back. God is good for contemplation, not for war. But — and here we are driven on to the reefs and hidden rocks which our leaders wish us to ignore, forget and cast aside — this whole bloody mess involves the Middle East; it is about a Muslim people who have kept their faith while those Westerners who dominate them — militarily, economically, culturally, socially — have lost theirs. How can this be, Muslims ask? Indeed, it is a superb irony that the Rev. Jones is a believer while the rest of us — by and large — are not. Hence our books and our documentaries never refer to Muslims vs. Christians, but Muslims versus “The West”.

And of course, the one taboo subject of which we must not speak — Israel’s relationship with America, and America’s unconditional support for Israel’s theft of land from Muslim Arabs — also lies at the heart of this terrible crisis in our lives. In yesterday’s edition of The Independent, there was a photograph of Afghan demonstrators chanting “death to America”. But in the background, these same demonstrators were carrying a black banner with a message in Dari written upon it in white paint. What it actually said was: “The bloodsucking Zionist government regime and the Western leaders who are indifferent [to suffering] and have no conscience are again celebrating the new year by spilling the red blood of the Palestinians.”

The message is as extreme as it is vicious — but it proves, yet again, that the war in which we are engaged is also about Israel and “Palestine”. We may prefer to ignore this in “the West” — where Muslims supposedly “hate us for what we are” or “hate our democracy” (see: Bush, Blair and a host of other mendacious politicians) — but this great conflict lies at the heart of the “war on terror”. That is why the equally vicious Benjamin Netanyahu reacted to the atrocities of 9/11 by claiming that the event would be good for Israel. Israel would now be able to claim that it, too, was fighting the “war on terror”, that Arafat — this was the now-comatose Ariel Sharon’s claim — is “our Bin Laden”. And thus Israelis had the gall to claim that Sderot, under its cascade of tin-pot missiles from Hamas, was “our ground zero”.

It was not. Israel’s battle with the Palestinians is a ghastly caricature of our “war on terror”, in which we are supposed to support the last colonial project on earth — and accept its thousands of victims — because the twin towers and the Pentagon and United Flight 93 were attacked by 19 Arab murderers nine years ago. There is a supreme irony in the fact that one direct result of 9/11 has been the stream of Western policemen and spooks who have travelled to Israel to improve their “anti-terrorist expertise” with the help of Israeli officers who may — according to the United Nations — be war criminals. It was no surprise to find that the heroes who gunned down poor old Jean Charles de Menezes on the London Tube in 2005 had been receiving “anti-terrorist” advice from the Israelis.

And yes, I know the arguments. We cannot compare the actions of evil terrorists with the courage of our young men and women, defending our lives — and sacrificing theirs — on the front lines of the “war on terror”. There can be no “equivalence”. “They” kill innocents because “they” are evil. “We” kill innocents by mistake. But we know we are going to kill innocents — we willingly accept that we are going to kill innocents, that our actions are going to create mass graves of families, of the poor and the weak and the dispossessed.

This is why we created the obscene definition of “collateral damage”. For if “collateral” means that these victims are innocent, then “collateral” also means that we are innocent of killing them. It was not our wish to kill them — even if we knew it was inevitable that we would. “Collateral” is our exoneration. This one word is the difference between “them” and “us”, between our God-given right to kill and Bin Laden’s God-given right to murder. The victims, hidden away as “collateral” corpses, don’t count any more because they were slaughtered by us. Maybe it wasn’t so painful. Maybe death by drone is a more gentle departure from this earth, evisceration by an AGM-114C Boeing-Lockheed air-to-ground missile less painful, than death by shards from a roadside bomb or a cruel suicider with an explosive belt.

That’s why we know how many died on 9/11 — 2,966, although the figure may be higher — and why we don’t “do body counts” on those whom we kill. Because they – “our” victims — must have no identities, no innocence, no personality, no cause or belief or feelings; and because we have killed far, far more human beings than Bin Laden and the Taliban and al-Qaeda.

Anniversaries are newspaper and television events. And they can have an eerie habit of coalescing together to create an unhappy memorial framework. Thus do we commemorate the Battle of Britain — a chivalric episode in our history — and the Blitz, a progenitor of mass murder, to be sure, but a symbol of innocent courage — as we remember the start of a war that has torn our morality apart, turned our politicians into war criminals, our soldiers into killers and our ruthless enemies into heroes of the anti-Western cause. And while on this gloomy anniversary the Rev. Jones wanted to burn a book called the Koran, Tony Blair tried to sell a book called A Journey. Jones said the Koran was “evil”; Britons have asked whether the Blair book should be classified as “crime”. Certainly, 9/11 has moved into fantasy when the Rev. Jones can command the attention of the Obamas and the Clintons and the Holy Father and the even more Holy United Nations. Whom the gods would destroy …

On the 9th Anniversary of 9/11, A Call to Close Guantánamo and to Hold Accountable Those Who Authorized Torture

On the 9th anniversary of the terrorist attacks on New York and Washington D.C. on September 11, 2001 that prompted the launch of the Bush administration’s “War on Terror,” the closure of Guantánamo and calls for accountability for those who instigated torture and established secret prisons and imprisonment without charge or trial remain as important as ever.

This is especially true because, on this particular anniversary, the crimes and injustices initiated by the Bush administration are, arguably, less in the public eye than at any time in the last six years. In 2004, after the Abu Ghraib scandal first alerted US citizens to a culture of torture and abuse that was sanctioned at the highest levels of government (however much the administration tried to brush it off as the work of “a few bad apples”), the US Supreme Court intervened, in Rasul v. Bush, to raise awareness of the lawless plight of the prisoners at Guantánamo by granting them habeas corpus rights, allowing lawyers to visit the men and to begin to puncture the veil of secrecy in which Guantánamo had been shrouded for the first two and a half years of its existence.

From then until the end of Bush’s presidency, the administration and Congress did their best to ignore the Supreme Court’s ruling, with Congress reiterating its support for the President’s malign policies through the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006, both of which purported to strip the prisoners of their habeas rights. Nevertheless, awareness of the injustice of Guantánamo grew steadily. During his second term, President Bush was obliged to pull back from various excesses, effectively closing his global network of secret prisons in September 2006, when he moved 14 “high-value detainees” from secret CIA prisons to Guantánamo, after the Supreme Court had forcefully inserted the Geneva Conventions’ obligation to treat prisoners humanely into his calculations in another important ruling in June 2006, Hamdan v. Rumsfeld.

In Boumediene v. Bush, a third ruling in June 2008, the Supreme Court reiterated that the Guantánamo prisoners had habeas corpus rights, ruling that the legislation passed by Congress that purported to strip the prisoners of their habeas rights was unconstitutional, and paving the way for a succession of habeas petitions to reach the US courts — 54 so far, of which 38 have been won by the prisoners.

When Barack Obama came to power, there was a sudden wave of interest in Guantánamo, and in President Bush’s legacy of torture and secret detention, but nine years on from 9/11, eight years and eight months since Guantánamo opened, and 20 months into Obama’s presidency, it is clear that, far from closing Guantánamo, as he promised in an executive order on his second day in office, President Obama now oversees a culture of indifference with regard to the fate of the Guantánamo prisoners, those held in the US prison at Bagram airbase, and others subjected to the CIA’s program of “extraordinary rendition” and secret prisons, many of whom are still unaccounted for.

No justice at Guantánamo

At Guantánamo, 176 prisoners await justice. Of these men, 93 have been cleared for release by the President’s interagency Guantánamo Review Task Force, but they remain held either for two particular reasons. The first — in the cases of men from countries including China, Libya, Syria and Tunisia, who cannot safely be repatriated — is because of difficulties in securing third countries that will take them and because the Obama administration challenged a judge’s ruling that they should be resettled in the US, and also stamped out internal efforts to do so that were initiated by former White House Counsel Greg Craig (who lost his job as a result).

The second reason is because 58 of the 93 men are Yemenis, and, in January, the President established an open-ended moratorium on releasing any Yemenis (even those cleared by his Task Force, or even – with one embarrassing exception — by the US courts) after a hysterical response to the news that the failed Christmas Day plane bomber, Umar Farouk Abdulmutallab, had been recruited in Yemen. The fact that this constitutes “guilt by nationality” appears to trouble no one.

Of the other 83 men, 48 have been designated by the Task Force as men who should continue to be held indefinitely without charge or trial, even though this policy was at the heart of President Bush’s disturbing post-9/11 innovations, and another 32 are scheduled to face trials of some sort. However, as recent reports have shown, the administration does not appear to have the appetite to pursue cases either in federal court or in the revamped version of the Military Commissions that Obama revived with the aid of Congress (and in the face of sustained criticism from legal experts) last summer.

No appetite for trials

Capitulating to hysterical criticism, President Obama has backed down from Attorney General Eric Holder’s announcement in November 2009 that five men, including Khalid Sheikh Mohammed, would face federal court trials in New York for their alleged involvement in the 9/11 attacks, and also appears to have backed down from Holder’s proposal to try five other men by Military Commission.

Only two of these cases have proceeded to trial — that of Omar Khadr, a former child prisoner, whose trial (halted by his lawyer’s illness last month) is scheduled to resume next month, despite fierce international criticism, and that of Ibrahim al-Qosi, a cook for Osama bin Laden’s entourage, whose trial was conveniently sidestepped when he accepted a secretive plea deal in July. (Another man, Ali Hamza al-Bahlul, is serving a life sentence after a one-sided trial in October 2008, in which he refused to mount a defense, and another, Ahmed Khalfan Ghailani, was transferred to New York in May 2009, before the backlash against federal court trials began, and his trial is scheduled to begin next week).

Why Obama’s detention policy in unjust — and encourages inertia

As with the prisoners in general, the administration has settled into a cosy rut, content to rely on the legislation passed by Congress the week after the 9/11 attacks — the Authorization for Use of Military Force — as its justification for holding prisoners indefinitely, with occasional interruptions for their habeas petitions, or for trials by Military Commission. What no one wants to discuss is that the AUMF is, essentially, the founding document of the Bush administration’s indefinite detention program, used as the justification for holding prisoners neither as prisoners of war, according to the Geneva Conventions, or as criminal suspects to be tried in federal courts.

The fact that the Obama administration publicly declared an end to the coercive interrogations and torture practices that were also part of President Bush’s program does not compensate for the fact that the detention policy itself remains fatally flawed, authorizing the detention of the Guantánamo prisoners as a unique category of human being, even if they are no longer referred to as “enemy combatants.” Moreover, in maintaining this woeful state of affairs, the administration, Congress and the judiciary are all implicated.

As well as justifying inertia at the heart of the administration, this reliance on the AUMF has also infected the habeas legislation. Although 38 prisoners have won their habeas corpus petitions over the last two years — providing the most sustained, high-level critique of endemic faults in the government’s supposed evidence, including a regular reliance on torture and unreliable witnesses — the majority of the 16 men who have lost their habeas petitions have done so not because they were involved with terrorism, but because they were foot soldiers for the Taliban (or, in two cases, a medic and a cook). The AUMF not only fails to distinguish between al-Qaeda (a terrorist group) and the Taliban (at the time of the US-led invasion, a government with an army, however reviled internationally), but consigns both to ongoing indefinite detention if the judges in the District Court in Washington D.C. conclude that the government has established, “by a preponderance of the evidence,” that they were involved with either al-Qaeda or the Taliban.

No justice at Bagram

While this fundamental problem needs tackling (but is thoroughly ignored in the mainstream media), the Obama administration’s record is even worse in Afghanistan. In March 2009, three foreign prisoners rendered to Bagram up to seven years previously won their habeas petitions, when Judge John D. Bates ruled that their situation was, essentially, no different from that of the prisoners at Guantánamo, and that the habeas rights extended to the Guantánamo prisoners by the Supreme Court in Boumediene v. Bush should extend to them as well.

However, rather than accepting Judge Bates’ ruling, the Obama administration appealed, winning in May this year, and thereby demonstrating that, unlike Guantánamo, Bagram would remain a genuine Bush-era legal black hole. A new appeal on behalf of these three men was submitted last week — including new evidence, which I first reported in 2007, in my book The Guantánamo Files, confirming that one of the men, Fadi al-Maqaleh, a Yemeni, was transferred to the notorious Abu Ghraib prison in Iraq, before being rendered back to Bagram — but it would be unwise to assume that this appeal will be successful.

No accountability for torture

On torture, rendition and accountability, Bagram also features prominently as an example of President Obama hiding exceptions to the absolute ban on torture that he announced in an executive order on his second day in office, with numerous reports of a secret prison within Bagram, and of temporary holding facilities throughout Afghanistan that are also beyond the law.

In addition, in February, the President failed to prevent a notorious Justice Department “fixer,” David Margolis, from rewriting the conclusion to a damning internal investigation into the conduct of two lawyers in the Office of Legal Counsel who wrote and approved the notorious “torture memos” in August 2002, which purported to redefine torture so that it could be used by the CIA.

In writing and approving the memos, the two lawyers — John Yoo and Jay S. Bybee — twisted the law out of shape to provide the Bush administration with the phoney legal cover it required, and, along the way, besmirched the reputation of the OLC, which is obliged to provide impartial legal advice to the Executive branch. However, although the internal investigation found both men guilty of “professional misconduct,” Margolis insisted that they had only exercised “poor judgment,” thereby shutting the door firmly on calls for the two men (and those in the White House who were directing them) to be held accountable for their actions.

And finally, just two days ago, the Obama administration prevailed in further attempts to shield Bush administration officials from accountability, in a case against a Boeing subsidiary, Jeppesen Dataplan Inc., which provided logistical support for the CIA’s “extraordinary rendition” program. The lawsuit was filed on behalf of five victims of the program, including Binyam Mohamed, the British resident who was rendered by the CIA to Morocco, where he was reportedly tortured for 18 months.

Last May, a panel of judges in the Ninth Circuit Court of Appeals took exception to the Obama administration’s reliance on the state secrets doctrine — a little used shield preventing judicial scrutiny of government actions, which was favored by President Bush — to prevent the case from proceeding. However, on Wednesday, by six votes to five, the full court upheld the government’s appeal, preventing the plaintiffs from having even a single day in court to tell the world what happened to them.

The use of the state secrets doctrine was clearly cynical, and serves only to demonstrate not only how far President Obama has strayed from his pre-election promises of transparent government, but also how closely he has clung to key aspects of President Bush’s belief in unfettered executive power.

The case may now proceed to the Supreme Court, but on the 9th anniversary of 9/11, as an insignificant pastor’s plan to burn copies of the Qur’an dominates headlines worldwide, the bleaker truth is that, when pushed, President Obama has chosen to insult Muslims far more deeply, essentially supporting legal maneuvering designed to ensure that Bush administration officials who authorized the torture of Muslims will not be held accountable, no matter how much the victims of these horrendous policies wish to present evidence of their torture in a US court.

As published exclusively on Cageprisoners. Cross-posted on Common Dreams, The Smirking Chimp, Uruknet and New Left Project.

France Turns Down Guantánamo Prisoner Nabil Hadjarab’s Appeal for Asylum

Yesterday, as I explained here, cleared Guantánamo prisoner Nabil Hadjarab wrote a letter to the French President Nicolas Sarkozy, beseeching the President to offer him a home in France, where he has extended family, and where he lived as a child. However, in a horribly swift response to the letter, AFP reports that the foreign ministry has already turned down his request.

Spokeswoman Christine Fages said, “It is not planned that France will receive a third detainee. France has already welcomed onto its soil two former Guantánamo detainees. In 2009, these two men, Lakhdar Boumediene and Saber Lahmar, were authorised to come and live in France.”

The foreign ministry failed to acknowledge that neither of these men had previous connections to France, and that, although President Sarkozy’s acceptance of Lakhdar Boumediene and Saber Lahmar was a welcome humanitarian gesture, it could be construed as one designed to secure favorable publicity, given that the plight of both men was particularly newsworthy. In contrast, Nabil Hadjarab’s story has been largely ignored in the media, even though he has family members in France who are more than willing to take him in and to help him adjust to life after Guantánamo.

In July, as AFP explained, French Communist MP André Gerin “urged Foreign Minister Bernard Kouchner to allow Hadjarab to return to France, pointing out that he was raised in France by his uncle after his father died in 1994.” As Gerin stated in a letter, “The uncle has French nationality, considers Nabil to be like his own son and is ready to look after him.”

Attorney Tara Murray of Reprieve, the London-based legal action charity whose lawyers represent Nabil, told AFP, “Reprieve still hopes that, upon serious consideration of Nabil’s letter, President Sarkozy will give him a chance to rebuild his life with his family in France. He is the one who has all of the ties to France, his family is there, his father fought for France in the Algerian war, his family has been hard working in the country for years now.”

Murray added that, when the US authorities cleared Nabil for release three years ago, they stated that he was “not a danger or threat at all.” She added, “We have met him personally, he is sweet, he is gentle, he is a kind man and even his guards in Guantánamo have gone on record to say that he is a very kind person.”

Readers who find the French government’s abrupt and dismissive response to Nabil Hadjarab’s appeal offensive can write to President Sarkozy via the Presidential website, or by mail to:

Président Nicolas Sarkozy
Monsieur le Président de la République
Palais de l’Elysée
55, Rue du Faubourg Saint-Honoré
75008, Paris, France

Note: Reprieve’s press release containing Nabil’s letter is available here (in French). Also see here for further information about Nabil, and about other Algerians still held in Guantánamo, which may make readers wonder whether the French government’s refusal to consider his case is part of a policy, shared by the government of France, the US (and, it should be noted, the UK) to combat well-documented claims that it is unsafe to repatriate Algerians, as part of a more general policy aimed at making sure that there are no impediments to the deportation of Algerians from Europe and the US.

Algerians in Guantanamo, Asylum in Europe, Guantanamo, Guantanamo campaigns
10.9.10
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Nabil Hadjarab, an Algerian in Guantánamo, Appeals to President Sarkozy to Allow Him to Rejoin His Family in France

Yesterday, Reprieve, the London-based legal action charity, published a letter to President Sarkozy in which Guantánamo prisoner Nabil Hadjarab pleads to be allowed to live with his family in France.

Just 22 years old at the time of his capture, Nabil, who spent much of his childhood in France and has close family there, was cleared for release under the Bush administration, but was never freed from Guantánamo because of long-standing fears about returning him to Algeria, and also because of inertia on the part of the French government, which has refused to offer him a new home. Now, however, he is at risk of being forcibly repatriated to Algeria after the US Supreme Court refused to intervene to prevent him and other cleared Algerian prisoners — including former British resident Ahmed Belbacha — from being transferred against their will, as happened in July with another Algerian, Abdul Aziz Naji.

Reprieve reports that, since March 2008, “no fewer than fourteen approaches have been made to the French government by Reprieve and by the Hadjarab family, but France has never made its official position towards Nabil clear.”

This is a sad state of affairs, given that President Sarkozy offered new homes last year to two other Algerians who feared repatriation, and who, in addition, did not even have a prior connection to France. These, however, were more high-profile cases than Nabil, whose release, it seems, would not provide the French President with such an obvious opportunity to be seen as a humanitarian saviour.

In a letter to President Sarkozy in June 2009, Nabil’s uncle Ahmed Hadjarab, a French citizen, asked the President “to welcome his nephew as a tribute to the great sacrifice that Nabil’s father, Said Hadjarab, made for France and for General de Gaulle during the war against Algeria,” as Reprieve explained.

In the letter, Ahmed Hadjarab wrote, “It seems to me that if the General were still here, he would have welcomed my request. He would probably have thought that after all that Nabil’s father did for France, it was difficult to consider his son as a stranger.”

Despite this appeal, however, Reprieve noted, “So far neither the French nor the US authorities have shown any inclination to assist Nabil Hadjarab or his family.”

Nabil’s letter to President Sarkozy is posted below:

Dear President Sarkozy,

My lawyers have informed me that there is not much that can be done now to prevent my immediate repatriation to Algeria, even though it will be against my will.

Although they have sought help from the American courts, it seems there is little to be found there. So I write this letter to you hoping that you will give my situation some consideration and rescue me from a terrible fate.

I have spent over eight years in this prison without any charges being brought against me. Despite this, the American courts have done nothing to stop the US administration from sending me wherever they want, without any consideration given to the fate awaiting me there.

In Algeria, I have no one that I can turn to, who could help me to get back on my feet after so many years of being kicked down. I will be left on my own, without a job or any resources.

Having spent so long in such an isolating place, I do not want to find myself alone again, in a position where I must beg for charity. The most important thing to me is dignity. My dignity has been taken away from me during the eight years that I have been imprisoned, suffering so many abuses that I do not even wish to discuss. Today I need your help to get it back.

Mr. President, you may think that all of this is not your problem, and you may be right. My fate does not seem to concern the US authorities either. But my fate does matter to my family, most of whom are citizens in your country.

My father and my uncle both worked hard in France all their lives and gave everything they had to your country. They lived in dignity, never unemployed or dependent on the state. They accomplished hard tasks without ever complaining.

I wish to follow their examples and make my family and France proud of me. I know that, if given the chance, I will be a model citizen and will not disappoint you. All I need is a little help — after so many years away from the outside world I won’t be able to do it all on my own. My uncle in France has promised to help me, and with a bit of support and time, I know I will be able to rebuild my life.

Yours sincerely,

Nabil Hadjarab

In publicizing Nabil’s letter, Polly Rossdale, of Reprieve’s Life After Guantánamo team, said, “Rebuilding one’s life after years of abuse and unlawful detention in Guantánamo is a huge challenge [but] one of the things that makes that challenge achievable is having the love and support of family. France is Nabil’s family home; France is where he has the best chance of getting back on his feet and recovering from the pain of many lost years.”

Cori Crider, Reprieve’s Legal Director, added, “An urgent and sensitive intervention from the President is now Nabil’s best chance for a new life in safety with his family. This is no longer simply a legal matter — it is a question of honour and humanity.”

As Ramadan ends, please write to President Sarkozy to ask him to offer a home in France to Nabil Hadjarab. You can send a message via the Presidential website, or write to:

Président Nicolas Sarkozy
Monsieur le Président de la République
Palais de l’Elysée
55, Rue du Faubourg Saint-Honoré
75008, Paris, France

Note: Reprieve’s press release about Nabil is available here (in French). Also see here for further information about Nabil, and about other Algerians still held in Guantánamo.

As published exclusively on Cageprisoners.

Algerians in Guantanamo, Asylum in Europe, Guantanamo, Guantanamo campaigns
10.9.10
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