As I have been explaining since the 9th anniversary of the opening of Guantánamo a year ago, it is now appropriate to regard most of, if not all of the remaining 171 prisoners as political prisoners, given that the Obama administration, Congress and the judiciary have all made sure that Guantánamo may never close, and that few, if any of the remaining prisoners will ever be released, even though 89 of them were cleared for release (or, technically, “approved for transfer”) by the interagency Guantánamo Review Task Force that President Obama established in January 2009.

The situation is no better for the other 82 prisoners, who are either scheduled to face trials that, in most cases, show no signs of materializing, or, in 46 cases, have been specifically designated as prisoners to be held indefinitely without charge or trial by President Obama, in an executive order last March. Although the President promised periodic reviews for these prisoners, his executive order essentially enshrines the indefensible –  indefinite detention without charge or trial — as an official policy of his administration, even though he and senior officials have been at pains to point out that it applies only to these men, and is not to be construed as lending credibility to indefinite detention in general.

That is a not an entirely convincing argument, of course, but in stepping back and looking at the situation facing all the men still held, it is, I believe, appropriate to focus not only on the injustice specifically facing these 46 men, but, as I mentioned above, to describe all the remaining detainees as political prisoners, because it makes no difference whether they have been cleared or not, as it ends up with the same result — indefinite detention, with no end in sight.

While the stories of the British ex-prisoners — eight of whom came to the Observer‘s offices to be interviewed, and to take part in a photoshoot — are fascinating, as they recall their horrendous experiences in US custody, and their struggles to rebuild their lives, it is Shaker Aamer, the charismatic, eloquent activist for the prisoners’ rights, who hovers over the proceedings, and it is Shaker, of course, who, like the 170 other men still held at Guantánamo, can now be regarded as a political prisoner, unlikely to be freed even though the Obama administration cleared him for release, and even though the British government has asked for him to be returned to the UK, where he has a British wife and four children.

Below, I’m cross-posting Tracy McVeigh’s article about the released prisoners, and an additional Observer article about Shaker, in which, sadly, it is revealed that senior White House sources have said that the Obama administration “will not risk releasing Shaker Aamer” before the Presidential election in November, because, as one said, “We’ve taken enough hits from the right; we can’t risk any more.” The article also notes that the US defence secretary, Leon Panetta — and therefore, by extension, the administration as a whole — has been “unwilling” to secure Shaker’s release by overcoming the main obstacle to the release of cleared prisoners — Congressional demands that the defense secretary certifies that any country to which prisoners are to be released is “safe,” and that released prisoners will not be able to “return to the battlefield.”

Given that this involves the UK, America’s staunchest ally in the “war on terror,” it is depressing that the administration is unwilling to tackle Congress, and it is to be hoped, therefore, that there is genuine reason to be encouraged by the Observer also noting that, with regard to the UK, “it is believed that the foreign secretary, William Hague, has called an urgent meeting early in the new year to discuss what more the British government can do to bring Aamer home.”

Securing Shaker’s return is not only a matter of justice, of course; it may also be a matter of life or death, as his attorney, Clive Stafford Smith, noted after visiting him in November. In the Independent, Paul Cahalan, who has closely followed Shaker’s case, spoke to his father-in-law, Saeed Siddique, who also raised alarm bells about Shaker’s condition. “In the 10 years Shaker has been there he has become old,” he said. “His hair has turned white and he is very ill. His children are growing now and it is difficult for them. The youngest one is nine and has never met his dad. He doesn’t know why, and he tells his mum, ‘My father doesn’t love me because he never sees me.’” He added, “Since Shaker has gone, my daughter has become very ill. She has been treated for depression and hearing voices. When she is very bad, I have to look after her and the children for weeks. It is very hard for her and all the children. When he was captured, Shaker offered to let my daughter divorce him, but she said, ‘No, I will wait for you.’ She is still waiting.”

Britain’s Guantánamo survivors are suffering a toxic legacy
By Tracy McVeigh, The Observer, January 1, 2012

After years of imprisonment, victims of America’s ‘icon of lawlessness’ were released without charge, but their lives have been shattered.

They call each other “brother” and the warmth between them is tangible. Not close friends as such, they come from different walks of life, cultures and backgrounds, but have been thrown together by a shared experience. They are Britain’s survivors of Guantánamo, the detention centre that has been called the “gulag of our times”.

All were imprisoned, interrogated and held without charge or trial; some allege that they were tortured; all have suffered lasting effects to their mental and physical health.

This month marks the 10th anniversary of the first detainees arriving at Guantánamo Bay detention camps, where the open-mesh and barbed-wire cells became synonymous with the abuse of human rights and the scandal of illegal rendition. The camp was called an “icon of lawlessness” by Amnesty International because inside its high-security fences all conventions of international justice, from the Geneva Convention to access to legal representation, were ignored.

Still in operation despite Barack Obama’s pre- and post-election pledges to close it, Guantánamo now houses 171 prisoners, including the last remaining British resident, Shaker Aamer. In total nine British citizens and six British residents were among the 779 adults and children imprisoned in Guantánamo camps, built on a US naval outpost on the southeastern tip of Cuba to house the “enemy combatants” of George Bush’s war on terror.

All bar Aamer were released back to the UK without charge. All were interviewed by the British authorities on their return and allowed to go back to whatever remained salvageable of their lives and were later awarded out-of-court compensation for their extrajudicial ordeal. Four have had their travel outside the UK restricted.

Any involvement the men may or may not have had with the fighting in Afghanistan or with any terror plots has never been proved. Most, says Guantánamo expert and author Andy Worthington, were “a bunch of nobodies”.

“One tries to stay very objective in taking an overview of Guantánamo, but at the end of the day it’s pretty evident that all but a handful of the people caught up in the trawling approach the Americans took post-9/11 in Afghanistan were not terrorists,” he said.

“Some were hanging out in Afghanistan because it was a cheap place to live or study, some young idealistic men might have gone to training camps to get involved in fighting against the Northern Alliance but, not to be too flippant, it was a bunch of boy scouts with AK47s. A combination of drifters and footsoldiers. The Americans were so busy cranking up the significance of what they were doing and hanging on to people they should have let go, it became a colossal waste of resources.”

On 14 February, 43-year-old Aamer will have spent 10 years in Guantánamo, without charge or trial, and two years after he was cleared for release by the US authorities. The day will be the 10th birthday of the youngest of his four children, Faris, who has never met his father. The family, who live in Battersea, south London, have had a difficult time coping. Aamer’s wife, Zin, suffers from depression and the children have been badly bullied because of who their dad is. Faris is struggling at school.

In a recent letter to the outside world from Aamer and six other prisoners, he wrote: “After these years of hardship that we have spent here, we want you to consider our cases as soon as possible and give us the right to a just and a public trial or set us free without restriction.”

Aamer, who worked for an Islamic relief organisation in Bosnia and Afghanistan, claims he was told by MI5 officers he could either spy on jihadists in the UK or stay in American custody. The US has accused Aamer of being Osama bin Laden’s personal interpreter, although he denies ever meeting him. In 2007 he was cleared for release.

His continuing detention is causing great concern among human rights campaigners, MPs and the British government, which has petitioned the US for his immediate release. His lawyer, Clive Stafford-Smith, who visited Aamer in November, has expressed deep concern about his declining health, made worse by several hunger strikes.

As part of the detainees’ financial agreement with the justice secretary, Ken Clarke, a sum is believed to have been set aside for Aamer, Britain’s last link to the discredited detention camp.

“We are all worried about Shaker,” said Asif Iqbal, 40, one of the “Tipton Three” who were among the first wave of British men to be released from Guantánamo in 2004 after two years in custody. All three were accused of visiting training camps for Taliban fighters in Afghanistan and handling weapons. “We know what it is like to be there and there is only so long a man can survive. He was a figure of support to everyone in Guantánamo, he really looked out for people and fought for prisoners’ rights. That is probably why they won’t let him go now.”

Campaign groups such as Reprieve and Cageprisoners and charities such as the Helen Bamber Foundation are working to provide support for the traumatised men who return from Guantánamo.

“Coming back to Britain, you are branded, you live like a guilty man. You assume they are listening to every call, every conversation,” said Feroz Ali Abbasi, 31, from Croydon, who was imprisoned in Guantánamo in 2002 after being picked up in Afghanistan.

The US authorities say he fought alongside al-Qaida and the Taliban and attended training camps. His lawyers argue that Abbasi is one of a small group of idealistic young Muslim men who found themselves caught in the wrong place at the wrong time. He was released in 2005.

“When 7/7 happened I waited for them to kick down my door. I want to go to university and I’ve to think really carefully about what course I take. Can it be misconstrued, can it be linked to terrorism? When the authorities have behaved without logic, with such stupidness, you still believe they are after us, just waiting for an opportune moment,” he said.

“It’s hard when Britain didn’t look after you. I don’t think we [ex-detainees] are wanted in this country, we’re made not to feel wanted. But they took liberties in Guantánamo Bay, and if we do not speak out they will take liberties with someone else, Muslim or not.”

The experiences of being inside the camps have not left any of the detainees. Several who came to the Observer photoshoot still find it difficult to talk about what happened, including Tarek Dergoul, 34, from east London, who lost an arm and his toes in an US airstrike in Afghanistan where he said he was on a business trip to buy property. He has talked about his torture before, but today says he cannot and politely refused to be photographed. “Sometimes you can talk and sometimes it sticks in your throat,” he said.

Abbasi recognised how Dergoul is feeling: “For me, speaking English broke a lot of barriers, because if you speak to the guards you become a person. I had two years in isolation, so you had to talk to soldiers.

“I spent a lot of time analysing them and realised that for Americans they have to believe they are right. You have to be a terrorist. They assume you are both Taliban and al-Qaida, there is no doubt in their minds, and in their view they have a right to treat you badly, seeking their retribution.

“I remember looking through my cage at another man who had a wife and child and thought how lucky I was to be a single man so I could concentrate on myself surviving. You are on edge 24/7, your senses are tuned to what they will do to you next, a footstep, a bolt opening, the creak of a door. Once I’d left, my mind did strange things. I’d be walking down the street and see buildings on fire, cars on fire. I had this impulse to hit out at people, even my mother. It was very troubling. Over time I’m becoming myself, but I did forget who I was. You are in one consciousness all the time, one survival mode.”

The bonds created between the survivors are strong and all the men are here in order to support the campaign for the release of Shaker Aamer.

“The pain of Guantánamo is made much worse by the pain of people left there,” said Bisher al-Rawi, 44, an Iraqi living in Derby, who was released in 2007 after almost five years. “When Guantánamo started I was living in London and watching all about it on TV. Back then I truly believed that the people in Guantánamo were terrorists. It’s funny, but I did.”

Bisher said he was on a business trip to Gambia with his business partner, Jamil el-Banna, when he was arrested by the Gambian National Intelligence Agency in November 2002. They were later handed on to US authorities, who sent them to Bagram airbase and from there to Guantánamo Bay. US files show they were believed to have been in possession of bomb-making devices.

“It is like being thrown into a very dark grave. The level of fear it is possible to experience and survive is something terrible. I tried very hard to preserve my body and my mind and thought I had done a good job until I was released. The emotions involved are still very personal and overwhelming, there is a real deep pain. I try not to remember the faces of the people who hurt me, so I can concentrate on those who are left behind.”

Al-Rawi said he too was glad he did not have a family. “I’d been really hoping to get married and it didn’t work out; that was something I was very thankful for when I was in Guantánamo. The families suffered so much, I was glad that was not my family.”

The “no smoke without fire” approach has dogged all the survivors back in the UK. Omar Deghayes had to have CCTV fitted at his home by police because of months of racist attacks by local youths.

For Deghayes, 42, six years’ imprisonment in Guantánamo also destroyed his marriage. His wife in East Sussex wrote to him in prison, but her letters were never delivered and neither were his to her. Both believed they had been abandoned and she returned to her family in Afghanistan. It was, he has said, one of the cruellest things that happened to him during his detention.

The other was the loss of sight in one eye after a guard allegedly tried to gouge out his eyeballs with his fingers. Deghayes, a law graduate, fled Libya for the UK as a child after his father was executed by the Gaddafi regime. He had been living in Pakistan with his wife and child when he was picked up by the Americans.

Suffering from post-traumatic stress disorder, Deghayes now lives in Brighton and works with human rights group Reprieve and other survivors of Guantánamo on the ongoing court cases against the UK government’s alleged complicity in human rights abuses at Guantánamo and other detention centres around the world.

An inquiry into the involvement of British intelligence services in torture and rendition has opened but is not due to begin calling witnesses until all those cases have concluded. All the British detainees, and charities including Amnesty International, have announced they will boycott the Detainee Inquiry, headed by Sir Peter Gibson, because of concerns that it will not be open and transparent.

“We may never get a public inquiry and examination of what happened at Guantánamo,” said Worthington. “But we do know it has left a toxic legacy. Guantánamo was an aberration.”

Abbasi’s verdict was simple and damning: “Guantánamo was an excuse to take away the rights of ordinary people. It must not happen again.”

Last British resident held in Guantánamo Bay faces another year’s captivity
By Tracy McVeigh, The Observer, January 1, 2012

The last British resident being held in Guantánamo Bay faces at least another year in detention because of wrangling in a US presidential election year. Senior White House sources have said the Obama administration will not risk releasing Shaker Aamer before November. “We’ve taken enough hits from the right; we can’t risk any more,” one said. Another said: “There will be no rocking of boats from now on in.”

As the 10th anniversary of the opening of the detention camp in Cuba approaches, it is believed that the foreign secretary, William Hague, has called an urgent meeting early in the new year to discuss what more the British government can do to bring Aamer home.

He will complete his 10th year in Guantánamo on 14 February, although he has never been charged or faced trial. His British wife, Zin, last saw her husband when she was pregnant with their fourth child. Aamer has never met his son, Faris.

Campaigners are stepping up efforts to draw attention to Aamer’s case, after his British lawyer, Clive Stafford-Smith, found the 43-year-old former charity worker in poor health during a visit to the prison in November.

“I do not think it is stretching matters to say he is dying in Guantánamo Bay,” said Stafford-Smith, director of the human rights charity Reprieve. Although Aamer was cleared for release by the US authorities in 2007 there have been no further moves to return him to the UK. He was first picked up in Afghanistan in 2001 where he said he worked for an Islamic charity. But the US suspected him of both Taliban and al-Qaida connections, accusing him of being a translator for Osama bin Laden.

New US legislation has also proved to be a stumbling block to his release with the US defence secretary, Leon Panetta, now responsible for certifying that Britain is a safe place for him to return to, and that he will commit no crimes there — something Panetta has been unwilling to do.

Stafford-Smith said: “Britain has the best record of any country with former Guantánamo prisoners, with nobody released committing any offence, and Shaker Aamer has never committed a crime of any kind. Why does Britain pretend it has a special relationship if a British resident is still in this shameful position?” He said Aamer had suffered “unfathomable abuse”.

Jane Ellison, Tory MP for Battersea, where Aamer’s wife and children live, is writing to Barack Obama to urge his immediate release. “People forget that behind this is a family in deep distress and a man in poor health,” she said. This is a human tragedy as much as a political embarrassment. The family of Shaker Aamer are hurting and they need him home.”

She has tabled several questions in the Commons drawing attention to Aamer’s plight and believes the UK Government is committed to bringing him home but is up against a lack of political will in the US.

“After 10 years, the bottom line should be that if they aren’t going to charge him, they should release him. That is the way we have conducted ourselves in Britain since the Magna Carta.”

But Aamer’s own campaigning spirit may be working against him. “The irony is that Shaker may be the victim of what he has done inside Guantanámo rather than anything he might be suspected of doing previous to his captivity. He has been a thorn in the side of the prison authorities, organising hunger strikes and fighting for prisoners’ rights. By all accounts he is a charismatic and eloquent man,” said investigative journalist and author Andy Worthington.

*****

The following is also from the double-page feature in the Observer:

The men America freed

Asif Iqbal, 40, of Tipton, West Midlands

Released in March 2004 after two years. On arrival at Guantánamo, a soldier told him: “You killed my family in the towers and now it’s time to get you back.”

Jamil el-Banna, 59, a Palestinian from Jordan

Has UK refugee status. He has five children, the last one born while he was in captivity. Released in 2007.

Jamal al-Harith, 45, from Manchester

A backpacker arrested by the Taliban who ended up in US detention. The web designer was freed in 2004 after two years.

Feroz Ali Abbasi, 31, from Croydon, south London

UK citizen born in Uganda. In 2002 the British Court of Appeal found his detention “legally objectionable”. Freed in 2005.

Bisher al-Rawi, 44, Iraqi-born

British resident living in Derby with wife and two young children. Picked up in Gambia in 2002 and freed in 2007.

Shafiq Rasul, 44, of Tipton, West Midlands

Released March 2004. US supreme court case Rasul vs Bush established detainees could challenge whether their detention is constitutional.

Rhuhel Ahmed [Ruhal Ahmed], 40, of Tipton, West Midlands

Held without trial or charge for more than two years. One of the Tipton Three who released a report detailing abuse and torture.

Martin Mubanga, 38, from Wembley, north London

Victim of extraordinary rendition, held for 33 months accused of al-Qaida links after his passport was found in a Pakistan base.

Moazzam Begg, 43, from Birmingham

After three years in US custody, he is now director of the London-based prisoners’ rights charity Cageprisoners Ltd and an outspoken critic of anti-terror legislation.

Tarek Dergoul, 34, from London

Claims to have gone to Afghanistan to buy up properties from fleeing refugees. Lost an arm and toes in an allied bombing raid. Although he attended the photoshoot to support his fellow detainees, he is deeply shy and politely refused to be photographed.

Omar Deghayes, 42, from Brighton

The Libyan-born British citizen was blinded, beaten and sexually assaulted between 2002 and 2007, despite having never been charged with an offence.

Richard Dean Belmar, 32, from London

Returned to the UK in 2005 after three years imprisonment, first in Pakistan, then Bagram and finally Guantánamo. Converted from Catholicism to Islam and had enrolled in a religious school in Afghanistan.

Binyam Mohamed, 33

An Ethiopian national who moved to the UK in 1994, he spent seven years in custody, four at Guantánamo. He was released in 2009. He is taking the government to court over British alleged complicity in his torture.

Sameur Abdenour [Abdulnour Sameur], 38, from London

Fled persecution from the military dictatorship in his native Algeria and was granted asylum in this country in 2000. He was detained in Guantánamo from 2002 to 2007.

… and one they still hold

Shaker Aamer, 43, Saudi-born

Next month Aamer will mark the 10th anniversary of his detention in Guantánamo. He worked as a legal translator in the UK and married a British woman in 1994. He claims to have been in Afghanistan working for a Saudi charity when he was picked up in 2002 and handed over to the Americans. He is thought to have angered the prison authorities by going on hunger-strike protests. He was cleared for release by the US in 2007 but remains in isolation.

Note: For further information, and to sign up to a new movement to close Guantánamo, please visit the new website, “Close Guantánamo,” which you can join here, and also please sign a new White House petition on the “We the People” website calling for the closure of Guantánamo. 25,000 signatures are needed by February 6.

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, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

Describing the document as reportedly being “too sensitive to be publicly released at the government inquiry into the UK’s role in torture and rendition,” and as contributing to the decision by the NGOs and lawyers to boycott the inquiry because it does not have “credibility or transparency,” the Guardian explained how the secret policy “was operated by the British government for almost a decade,” and how it “instructed senior intelligence officers to weigh the importance of the information being sought must be balanced against ‘the level of mistreatment anticipated’ — the degree to which the prisoner or prisoners will suffer.”

The Guardian also explained how the document revealed the fears of the government and the intelligence agencies that they were breaking laws, as it “acknowledged that MI5 and MI6 officers could be in breach of both UK and international law by asking for information from prisoners held by overseas agencies known to use torture,” and also “explained the need to obtain political cover for any potentially criminal act by consulting ministers beforehand.”

The Guardian also described the history of the secret interrogation policy, explaining that it was first made available to MI5 and MI6 officers in Afghanistan in January 2002 so that they could “continue questioning prisoners whom they knew were being mistreated by members of the US military.” It was “amended slightly” later in 2002, and was then “rewritten and expanded in 2004″ after the government became concerned about the threat posed by British Muslims radicalized by the invasion of Iraq, and was “amended again in July 2006 during an investigation of a suspected plot to bring down airliners over the Atlantic.”

It was also noted that “separate policy documents were issued for related matters, including intelligence officers conducting face-to-face interrogations.”

In key passages, the 10-page document explains international and domestic laws regarding torture, and reiterates the explanation always provided by government officials when they were questioned about the use of torture — that MI5 and MI6 do not “participate in, encourage or condone the use of torture or inhuman or degrading treatment.” However, as the Guardian noted, this “blanket denial” failed to disclose that officials were actually “quoting from a document which offered MI5 and MI6 officers a means of extracting information from people being tortured.”

As the article proceeded to explain:

Intelligence officers were instructed not to carry out any action “which it is known” would result in torture. However, they could proceed when they foresaw “a real possibility their actions will result in an individual’s mistreatment” as long as they first sought assurances from the overseas agency.

Even when such assurances were judged to be worthless, officers could be given permission to proceed despite the real possibility that they would committing a crime and that a prisoner or prisoners would be tortured.

“When, not withstanding any caveats or prior assurances, there is still considered to be a real possibility of mistreatment and therefore there is considered to be a risk that the agencies’ actions could be judged to be unlawful, the actions may not be taken without authority at a senior level. In some cases, ministers may need to be consulted,” the document said.

In deciding whether to give permission, senior MI5 and MI6 management “will balance the risk of mistreatment and the risk that the officer’s actions could be judged to be unlawful against the need for the proposed action.”

At this point, “the operational imperative for the proposed action, such as if the action involves passing or obtaining life-saving intelligence” would be weighed against “the level of mistreatment anticipated and how likely those consequences are.”

Ministers may be consulted over “particularly difficult cases,” with the process of consulting being “designed to ensure that appropriate visibility and consideration of the risk of unlawful actions takes place.” All such operations must remain completely secret or they could put UK interests and British lives at risk.

The mention of “ministers” obviously suggests that this secret policy was well known to the most senior ministers in the Labour government, including Tony Blair, Jack Straw, David Blunkett and David Miliband, and the Guardian noted that disclosure of the contents of the document “appears to help explain the high degree of sensitivity shown by ministers and former ministers after the Guardian became aware of its existence two years ago,” explaining that Tony Blair “evaded a series of questions over the role he played in authorizing changes to the instructions in 2004″ (as discussed by the Guardian in June 2009, and also see my article here), and adding that former home secretary David Blunkett “maintained it was potentially libellous even to ask him questions about the matter,” and that David Miliband, when he was foreign secretary, told MPs that the secret policy could never be made public as “nothing we publish must give succour to our enemies.”

As the Guardian also noted, Tony Blair, David Blunkett and former foreign secretary Jack Straw all “declined to say whether or not they were aware that the instructions had led to a number of people being tortured.”

The intelligence agencies have long acknowledged that their work involves difficult choices involving the definition and use of torture, with Jonathan Evans, the head of MI5, claiming in a speech in October 2009 that his officers “would be derelict in their duty if they did not work with intelligence agencies in countries with poor human rights records,” and Sir John Sawers, the head of MI6, speaking about the “real, constant, operational dilemmas” involved in the UK’s relationships with dubious regimes.

The Guardian also wondered about the role of the Intelligence and Security Committee, who are involved with the oversight of the intelligence agencies, explaining that the Committee was “known to have examined the document while sitting in secret, but it is unclear what — if any — suggestions or complaints it made,” and also noted that Paul Murphy, the Labour MP who was the chair of the Committee in 2006, “declined to answer questions” about the document and the Committee’s scrutiny of it.

To my mind, however, the key phrase that emerged from the Guardian‘s article was delivered by Ken Macdonald, the Director of Public Prosecutions from 2003-08, who, in response to Jonathan Evans’ speech in October 2009, questioned whether “Tony Blair’s government was guilty of developing something close to a criminal policy” (emphasis added).

This policy — whether criminal or “close to” criminal — has affected dozens of British citizens and residents since the 9/11 attacks, as Ian Cobain has been reporting since 2008. These men are not only those who, like the British resident Binyam Mohamed, ended up at Guantánamo after being tortured in US custody in Pakistan, in Moroccan custody, and then in US custody in Afghanistan, with British knowledge of some, if not all of this 28-month period, but others whose cases are not generally as well known, and whose torture primarily involved the British and the security services of the countries they were seized in, and does not appear to have been specifically driven by the US.

Most of these cases have involved British citizens and residents stating that they were “questioned by MI5 and MI6 officers after being tortured by overseas intelligence officials” in countries including Pakistan, Bangladesh, Afghanistan, Egypt, Dubai, Morocco and Syria. Some, as the Guardian noted, “are known to have been detained at the suggestion of British intelligence officers,” while others were “interrogated on the basis of information that could only have been supplied by the UK.”

Moreover, some of the men were subsequently convicted of terrorism in a British court — with their torture allegations suppressed, in the case of Rangzieb Ahmed from Rochdale, who was convicted of “running an al-Qaida terror cell” and sentenced to life in December 2008 — while others were subjected to control orders (a form of house arrest, imposed on the basis of secret evidence).

Others resumed their lives, like Alam Ghafooor, who is “a businessman in Yorkshire,” Azhar Khan, who is “a software designer living in Berkshire,” and a third man, who is “a doctor practising on the south coast of England,” and, as the Guardian noted, “[s]ome have brought civil proceedings against the British government, and a number have received compensation in out-of-court settlements, but others remain too scared to take legal action.”

It is not known where these latest revelations will lead, although they will surely add to the pressure on the government to rethink its plans for an inquiry that has no support from NGOs, lawyer and former Guantánamo prisoners. As the Guardian also noted, the allegations that officers from MI5 and MI6 “committed criminal offences while extracting information from detainees overseas” has been the subject of a Metropolitan Police investigation, with detectives now conducting a “wider investigation into other potential criminal conduct.”

Interestingly, David Cameron conceded last July, when announcing the torture inquiry, that it cannot begin until the Metropolitan Police have concluded their investigation, and last week ITV News reported that “Scotland Yard detectives plan to interview prisoners at Guantánamo Bay as part of an investigation into a MI6 officer,” which “involves events at the Bagram US base in Afghanistan in January 2002.” As was explained on the ITV News blog, “Detectives from the Specialist Crime Directorate are trying to track down many of the nearly 50 prisoners who were at Bagram during that month,” because Scotland Yard detectives “want to establish whether a MI6 officer who was at the base broke British law after witnessing the way prisoners were treated.”

While this is a fascinating development — and ought to lead to renewed calls for the return to the UK of Shaker Aamer, the last British resident in Guantánamo, who is the subject of part of the Metropolitan Police investigation, based on his allegations that a British agent witnessed his abuse at the hands of US agents in Afghanistan — the Guardian also questioned whether the replacement (PDF) for the “Agency policy on liaison with overseas security and intelligence services in relation to detainees who may be subject to mistreatment,” which was revised on the orders of David Cameron, on the grounds that the new government wished to give “greater clarity about what is and what is not acceptable in the future,” was actually adequate. It was noted that human rights groups have alleged that there are still “serious loopholes that could permit MI5 and MI6 officers to remain involved in the torture of prisoners overseas,” and that, just last week, the High Court “heard a challenge to the legality of the new instructions, brought by the Equality and Human Rights Commission,” with judgment expected later in the year.

In light of the Guardian‘s revelation of this document, Eric Metcalfe, the director of human rights policy at JUSTICE, the all-party law reform and human rights organization, wrote an article today for the Guardian‘s Comment is free, in which he summed up the problems for the government (the current one, as well as the former one) and the intelligence services that were revealed along with the leaked report.

“Torture,” Metcalfe confirms, “was something the previous government would never knowingly condone or be complicit in,” However, “when it came to situations in which the government did not know for certain, or did not especially want to, all bets were, apparently, off.” As Metcalfe proceeded to ask:

Would you risk someone being waterboarded in a foreign country for a week if you thought it might save 10 British lives? What if you thought it might save only one life, but you were not really sure? What would that be worth? Waterboarding for a day? The secret government policy uncovered in Ian Cobain’s story on Thursday does not set things out in such crude terms, but it is the kind of grotesque utilitarian calculus that is invited by its bland references to “balancing the risk of mistreatment” against “operational imperatives.”

And although the policy may have changed, officially, it is hard to imagine that, in the corridors of power, when a supposed threat is highlighted in missives from foreign allies known for using torture, anything has changed. Those words — “balancing the risk of mistreatment” against “operational imperatives” — strike me as exactly the kind of language that David Cameron and other ministers will be using with senior officials in the intelligence agencies, just as happened with the previous government.

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, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here — or here for the US), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

The appeal, by lawyers for MI5 — but with the explicit backing of the government — sought to overturn a ruling in the Court of Appeal last May, when judges ruled that the intelligence services could not suppress allegations, in a civil claim for damages submitted by six former Guantanamo prisoners, that the British government and its agents had been complicit in their ill-treatment. The six are Bisher al-Rawi, Jamil el-Banna, Richard Belmar, Omar Deghayes, Binyam Mohamed and Martin Mubanga, and they argued, as the Guardian put it, that “MI5 and MI6 aided and abetted their unlawful imprisonment and extraordinary rendition.”

The ruling last May precipitated a huge crisis in the government, as the first of hundreds of thousands of classified documents emerged from the court, revealing the extent to which Tony Blair and Jack Straw were up to their necks in wrongdoing, preventing consular access to a British citizen in Zambia, in Tony Blair’s case, and in Straw’s, approving the rendition of British citizens to Guantanamo the day before the prison opened in January 2002. I covered this story in detail in my article, UK Sought Rendition of British Nationals to Guantánamo; Tony Blair Directly Involved.

As a result, ministers scrambled over each other in their rush to shut down further damaging leaks from the court by arranging for the former prisoners to accept compensation claims in exchange for dropping the civil claim for damages, persuading them that they would not be able to afford to proceed with their case if they did not accept the offer.

The settlement was announced in November, but the government immediately responded not with a dignified silence, which would have been appropriate as they wheedled their way out of the court-ordered release of evidence of complicity in torture at the highest levels of government, but with a provocative announcement by justice secretary Kenneth Clarke, who chose the very moment that the payments were announced to also announce that, in future, the work of Britain’s security services would be “permanently hidden from court hearings,” as the Guardian explained.

Kenneth Clarke told MPs that a government green paper, supposedly to be published this summer, would “contain specific proposals designed to prevent the courts from releasing the kind of information that has emerged from recent Guantánamo cases in the English courts.” A Whitehall official told the Guardian, “It will absolutely eliminate [the possibility of] the process happening again.”

The Guardian also explained that ministers had been “convinced by MI5 and MI6 that disclosing information held by the security and intelligence agencies — and notably information provided by foreign agencies such as the CIA –compromises Britain’s national security,” and that, as a result, they were planning to use a secret evidence and the system of speoial advocates, used in domestic terrorism cases, which has alarmed believers in open justice for many years.

To introduce secret evidence into the courts for cases involving domestic terror suspects, the government set up a ludicrous situation whereby special advocates are appointed to represent defendants in closed sessions in which secret evidence is discussed, but they are unable then to discuss anything that they see or hear with their clients, tying their hands and conjuring up the spirit of Franz Kafka, as I have discussed at length in previous articles — see, for example, Britain’s Guantánamo: Calling For An End To Secret Evidence, Calling Time On The Use Of Secret Evidence In The UK, Control Orders: Solicitors’ Evidence before the Joint Committee on Human Rights, February 3, 2010 and Control Orders: Special Advocates’ Evidence before the Joint Committee on Human Rights, February 3, 2010.

In the cases of British nationals and foreign nationals held on control orders (a form of house arrest) on the basis of secret evidence, the Law Lords — the precursors to the Supreme Court — ruled in June 2009 that the system of secret evidence and special advocates infringed the men’s right to a fair trial under Article 6 of the European Convention on Human Rights, so it was alarming that the government wanted to expand this system as a blanket ban on any future discussion of wrongdoing on the part of the security services.

The appeal that was decided by the Supreme Court on Wednesday was essentially testing the waters for the new proposals regarding secret evidence and the security services, and, a a result, the government’s plans are thoroughly discredited. See here for the judgment (120 pages, PDF), and see here for a brief summary issued by the Court.

Delivering the judgment, Lord Dyson said, “There are certain features of a common law trial which are fundamental to our system of justice, both criminal and civil. First, subject to certain established and limited exceptions, trials should conducted and judgments given in public. The importance of the open justice principle emphasised many times. The open justice principle is not a mere procedural rule. It is a fundamental common law principle.”

“Secondly,” Lord Dyson stated, “trials are conducted on the principle of natural justice,” and he warned that allowing a “closed procedure” in “an ill-defined way” could “be the thin end of the wedge,” adding, “This would be a big step for the law to take in view of the fundamental principles at stake. In my view this is a matter for parliament and not the courts.”

Lord Hope also had some powerful advice for the government, and a stirring defense of the law. “There comes a point,” he said, “where the line must be drawn between procedural choices which are regulatory only and procedural choices that affect the very substance of the notion of a fair trial. Choices that cut across absolutely fundamental principles — such as the right to be confronted by one’s accusers and the right to know the reasons for the outcome — are entirely different. The court has for centuries held the line as the guardian of these fundamental principles.”

He added, “Any weakening in the face of advances in the methods and use of secret intelligence in a case such as this would be bound to lead to attempts to widen the scope for an exception to be made to the principle of open justice.”

As the Guardian explained, Lord Brown warned that cases involving closed procedures “would mean that claims concerning allegations of complicity, torture and the like by UK intelligence services abroad would be heard in proceedings from which the claimants were excluded, with secret defences they could not see, secret evidence they could not challenge, and secret judgments withheld from them and from the public for all time.”

Lord Kerr added that, under the proposals put forward by the security services, “all the material goes before the judge and a claim that all of it involves national security or some other vital public interest will be very tempting to make.”

However, although the decision is “a significant victory for open justice,” as the Guardian explained, the nine judges “pointed out that parliament could change the law to permit such ‘closed material procedures’ in future.”

That should not be necessary, as, in the Supreme Court’s judgment, all nine judges “rejected the security service’s main submission that a court has a common law power to order a closed material procedure as an alternative to the more conventional public interest immunity (PII) certificate,” as the Guardian put it. They argued that such a power “would contravene fundamental and long-established principles of open and natural justice.”

If there is any valid area for discussion, it is with the “mission creep” of a secondary proposal by the security services –  that “a court has a common law power to order a closed material procedure as an add-on to a conventional PII in certain exceptional cases.” When pushed on fundamental problems with their cavalier attitude to the law as it relates to the perceived threat of terrorism, governments have tended to resort to introducing their dangerous innovations in “exceptional cases,”and as a result it is worth keeping a close eye on how the government responds to this particular point.

Nevertheless, this is, in general, a judgment to be savoured, and confirmation, yet again, that British judges are capable of maintaining their independence, despite intense political pressure, when it comes to dealing with issues involving terrorism and “national security.” In response to the judgment, Eric Metcalfe, of the all-party law reform group JUSTICE, which was involved in the case, said, “The ruling has confirmed that secret evidence has no place in the common law. It is a clear setback for the government’s plans to extend the use of secret evidence and secret hearings in our courts. Although it is open to parliament to legislate further, today’s ruling sets a high hurdle for any MP seeking to cut across centuries of common law tradition.”

Let us hope that Eric Metcalfe is correct, and, if not, that those of us who have had enough secrecy and complicity in torture in the last ten years, can say to Parliament that enough is enough, and that we do not want the expansion of the secrecy state, and do not want politicians and the intelligence services to have new opportunities to hide their wrongdoing under the feeble guise of “national security.”

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, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here — or here for the US), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

The practice run last Wednesday involved the torture inquiry that Cameron announced exactly a year before, on July 6, 2010, when he told the House of Commons that he had asked a judge, Sir Peter Gibson to “look at whether Britain was implicated in the improper treatment of detainees held by other countries that may have occurred in the aftermath of 9/11,” noting that, although there was no evidence that any British officer was “directly engaged in torture,” there were “questions over the degree to which British officers were working with foreign security services who were treating detainees in ways they should not have done.” Last Wednesday, the terms of reference for the torture inquiry were published. With storm clouds gathering over Wapping, David Cameron did not comment directly as human rights groups and lawyers savaged the pending inquiry as a whitewash, but he had already done all that was needed in the preceding twelve months.

How we arrived at a whitewash

The announcement of the inquiry last July was a shock, as it had only been precipitated when William Hague, the coalition government’s foreign secretary, told the BBC, shortly after the General Election in May, that a judge-led inquiry into British complicity in torture was part of the coalition agreement between the Tories and the Liberal Democrats.

Unable to escape from Hague’s unscripted announcement, Cameron had had to go along with it. It was reported that he had actually agreed with Hague that there should be a judge-led inquiry, but if this was the case, it only lasted until senior figures in the Cabinet Office, with connections to the intelligence services, warned him to be careful not to replicate the Saville inquiry into Bloody Sunday, which “could drag on for a decade or more at a cost of hundreds of millions of pounds.”

As a result, the inquiry was so drastically scaled back that reports “sourced to the Foreign Office” suggested that it “would examine only one case — that of Binyam Mohamed, the British resident who was seized in Pakistan in April 2002, rendered to torture in Morocco and Afghanistan, and then held in Guantánamo from September 2004 to February 2009. Most importantly, according to these reports, David Cameron “had already concluded that the country’s intelligence agencies were guilty only of errors of omission, not commission.”

This was the most telling leak, even though it was also noted, by Ian Cobain in the Guardian, that Deputy Prime Minister Nick Clegg had persuaded Cameron that his plan — in which “the allegations would be examined briefly, and in secret, by a commission sitting over the summer” — “would be seen as a whitewash.”

With Clegg’s intervention, a judicial inquiry with a wider scope was announced by Cameron on July 6 last year, with confirmation that it would be led by Sir Peter Gibson, a former appeal court judge, assisted by Dame Janet Paraskeva, head of the civil service commissioners, and Peter Riddell, a former Times journalist and a fellow of the Institute of Government.

One problem was immediately apparent — Gibson is the government’s own Intelligence Services Commissioner, whose job is to review the activities of the intelligence services. David Cameron told the House of Commons that the inquiry would be thorough, allowing the victims and their representatives to give evidence during open sessions, as well as representatives of human rights groups, but as I explained at the time:

[T]he scope of the inquiry [was] clearly limited by the fact that, as Richard Norton-Taylor explained in the Guardian, “It will not summon witnesses from foreign countries, such as current or former CIA officers. And it will not be able to compel any individuals to give evidence.” Norton-Taylor added that, on [the] evening [of July 6, 2010], Whitehall officials said that “former Labour ministers, including Tony Blair, will not be asked to give evidence, even though the treatment of British citizens and residents under investigation happened on their watch,” and even though, as was alleged [in] June [2009], former Prime Minister Tony Blair “was aware of the existence of a secret interrogation policy which effectively led to British citizens, and others, being tortured during counter-terrorism investigations.”

Moreover, doubts about the transparency of the inquiry were in place from the very beginning, as the Prime Minister also announced that most of the inquiry would be held in secret and stated, “Let’s be frank, it is not possible to have a full public inquiry into something that is meant to be secret.”

Reprieve, the London-based legal act charity whose lawyers represented Binyam Mohamed, immediately criticised the inquiry, even going so far as to call for Gibson’s resignation. On July 20, Reprieve’s director, Clive Stafford Smith, wrote a letter to Gibson in which he called on him to step down from his role as the judge in charge of the inquiry, complaining that “his impartiality is fatally compromised,” and noting that, “As the Intelligence Services Commissioner (ISC), it has been Sir Peter’s job for more than four years to oversee the Security Services,” and as a result “he cannot now be the judge of whether his own work was effective.” As the Guardian also noted last week, Gibson’s job involved “overseeing government ministers’ use of a controversial power that permits them to ‘disapply’ UK criminal and civil law in order to offer a degree of protection to British intelligence officers committing crimes overseas,” which, of course, creates exactly the conflict of interest mentioned by Clive Stafford Smith.

In September, nine organizations, including Amnesty International, Cageprisoners, JUSTICE, Liberty, the Medical Foundation for the Care of Victims of Torture, Redress and Reprieve, published a letter to Sir Peter Gibson, explaining 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.”

In February this year, the NGOs went one step further, warning that they were so alarmed that the inquiry would “fail to meet the UK’s obligations under international and domestic law,” as the Guardian explained, that they were “considering whether they should boycott the inquiry,” because they feared that it it would “not be sufficiently independent, impartial or open to public scrutiny” — in other words, as I explained at the time, they were concerned that it would be a whitewash.

That letter — which is much more forceful than the one in September 2010 — is available here, and it contains a detailed analysis of the NGOs’ problems with the inquiry, which were so fundamental that a boycott was inevitable unless the government changed its terms of reference.

The government’s plans are “in disarray,” but will a boycott derail the inquiry?

With Cameron’s subterfuge in mind, however — that comment last July about him having already made up his mind about the inquiry’s conclusion — the chances of changes that would appease the NGOs were, to be blunt, non-existent. As a result, when the terms of reference and protocols under which the inquiry will be run were published last Wednesday, the NGOs “queued up to denounce it as a sham,” as the Guardian explained. With lawyers for the victims adding that “they were boycotting the hearings,” the Guardian stated that the government’s plans for the torture inquiry were now “in disarray.”

The publication of the terms of reference, the Guardian also explained, “showed that key hearings will be held in secret and the cabinet secretary will have the ultimate say over what the public will and will not learn,” that “individuals subjected to rendition and torture during the so-called war on terror will not be permitted to ask questions of MI5 or MI6 officers and the inquiry will not seek any evidence from foreign intelligence agencies, such as the CIA, about British involvement in the torture and abuse of detainees.”

A fundamental dishonesty was highlighted in the contrast between the stated aim of the inquiry — to “establish a reliable account of what happened” — and the reality: that the inquiry “will not request evidence from the authorities of other countries or their personnel.” The Guardian also noted that there were “doubts about how far the inquiry will go to uncover evidence about operations in which British troops secretly rendered detainees to prisons where they were likely to be abused,” as happened with prisoners rendered from Iraq to Afghanistan.

Although the criticism by NGOs and the lawyers’ boycott was well signalled in advance, it remains a thorough disappointment that the coalition government has so obviously opted for a whitewash, having initially indicated that it would act to differentiate itself from the Labour government on whose watch the UK’s involvement in torture took place. It is true, as the Guardian noted, that “Gibson and his inquiry team will have faced intense pressure from the intelligence agencies and senior civil servants, who will be anxious not only to avoid the airing of embarrassing state secrets, but to ensure that intelligence-sharing relationships with the US and others remain protected — even when those relationships have entailed the abuses at the heart of the inquiry.”

Protecting that “special relationship,” however, was at the heart of David Miliband’s 18-month struggle with two high court judges to prevent disclosure of information relating to British knowledge of Binyam Mohamed’s treatment in US custody in Pakistan. That battle ended with the Court of Appeals overruling Miliband and releasing the judges’s summary of Mohamed’s treatment, but the Labour government delivered a clear message that, when it came to upsetting the Americans, the UK was fiercely resistant to revealing any information whatsoever, even if, as under President Bush, America had turned into a nation that had established a global system of kidnapping, torture and arbitrary detention. With the publication of the terms of reference, the Tory-led coalition government has demonstrated that it, too, has no intention of criticising its US allies.

As a result of pandering to the Americans’ wishes, the terms of reference are “so restrictive,” as the Guardian described it, that JUSTICE, the UK section of the International Commission of Jurists, warned that the inquiry “was likely to fail to comply with UK and international laws governing investigations into torture.” Eric Metcalfe, JUSTICE’s director of human rights policy, said that the rules “mean that the inquiry is unlikely to get to the truth behind the allegations and, even if it does, we may never know for sure. However diligent and committed Sir Peter and his team may be, the government has given itself the final word on what can be made public.”

Adding to the criticism, Shami Chakrabarti, the director of Liberty, asked, “When is an inquiry not an inquiry? When it’s a secret internal review. The use of torture by great democracies was the most shaming scandal of the war on terror. Today’s disappointing announcement suggests ministers, not independent judges will decide what the public is entitled to know. It is very hard to see the point of wasting public money on such a sham.”

Louise Christian, the solicitor for four British men formerly held in Guantánamo, told the Guardian that the terms of reference also excluded the former prisoners. Explaining that “her clients would be playing no part in the inquiry,” she added, “It’s just like Bloody Sunday — this is the first torture inquiry and there will need to be another in a few years.”

Clive Stafford Smith confirmed the key role played by the US, stating, “Virtually nothing will be made public that is not already in the public domain. This is meant to be an inquiry into British complicity into torture and rendition, almost all of which was complicity with the Americans. Yet these terms give America a veto on much of what should be public.”

This was followed up by Andrew Tyrie, the Conservative MP for Chichester, and the chair of the All-Party Parliamentary Group on Extraordinary Rendition, who said, “Sir Peter Gibson has stated that he will not be asking the US or other foreign organisations for information on rendition. Without this information, his examination of other aspects of rendition is likely to be incomplete. The plain and highly regrettable fact is that the UK government is not in possession of all the facts on its own involvement in rendition. This is what government departments have confirmed to me.”

In addition, Gareth Peirce, who is the solicitor for several former Guantánamo prisoners, lamented that, while the Ministry of Defence was obliged to have the torture and murder of Baha Mousa in Iraq exposed to public scrutiny in a public inquiry, “the intelligence services, in contrast, are being allowed to hide.” This was something that Reprieve had remarked upon last July, in response to Cameron’s announcement of the inquiry, pointedly asking why the inquiry was not going to be held under the Inquiries Act of 2005, as with the Baha Mousa inquiry.

This, as Reprieve noted, was “a model of an inquiry functioning efficiently, including the hearing of secret evidence,” and Reprieve lamented that, under the current plan for the torture inquiry, “there is no formal mechanism for civil participation — so Reprieve and other civil organisations will not be allowed access to documents and proceedings,” whereas, under the Inquiries Act, “document classification review proceedings are sophisticated and rightly allow the judge to balance the need for national security against the need for transparency.”

However, as everyone has now realized, justice is not what the Gibson inquiry is meant to provide. Instead, it is meant to be nothing more than an expensive version of the swift, private inquiry with a pre-ordained conclusion that David Cameron wanted last summer.

The struggle for justice continues.

Note: The photo at the top of this article is from Indymedia’s report on the London Guantánamo Campaign’s “Prisoner Solidarity Protest” outside the US embassy in London on July 4, 2011.

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, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here — or here for the US), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

In the three years since that landmark case, Boumediene v. Bush, the prisoners’ initial success in the District Court in Washington DC., where they won 38 of the first 52 cases, has been abruptly halted, as right-wing judges in the D.C. Circuit Court, led by Senior Judge A. Raymond Randolph, have pushed back, insisting that little evidence is required to continue holding men indefinitely, even if, as in most cases, they were nothing more than insignificant foot soldiers for the Taliban, rather than international terrorists.

In response to this repeated hurling down of gauntlets by Judge Randolph, who is notorious for approving every piece of Guantánamo-related legislation that was subsequently overturned by the Supreme Court, there has been no repeat of Boumediene. In the last few months, lawyers for the prisoners have tried to undermine Judge Randolph and his colleagues on numerous fronts. Eight Guantánamo cases have made their way to the Supreme Court, as SCOTUSblog reported back in December, but all have failed.

Some of these cases have previously been discussed here. There are, for example, the poor Uighurs, innocent Muslims from China’s Xinjiang province, seized by mistake but trapped in Guantánamo because no one wants to allow them to be resettled in the US. Their attempt to secure justice in the courts finally came to an end last month, when the Supreme Court refused to consider their case, leading to an extraordinary and eloquent lament by one of their attorneys, Sabin Willett.

Before that, Judge Laurence H. Silberman, another aged right-winger, had wandered off on an extraordinary tangent about the perceived threat of terrorists in the case of a generally insignificant Yemeni, Yasein Esmail, who lost his appeal, and in March another generally insignificant Yemeni, Uthman Abdul Rahim Mohammed Uthman, whose habeas petition was granted in February 2010 by a judge who perceived that the government’s evidence consisted entirely of statements made by prisoners who had been tortured or whose testimony was officially regarded as unreliable, had his successful petition reversed. On that occasion, the culprits were a panel of judges that included another well-known right-winger, Judge Brett Kavanaugh, who declared, as ProPublica reported, “that the government doesn’t need direct evidence that a detainee fought for or was a member of al-Qaeda in order to justify a detention.”

The Supreme Court fails to tackle torture in the past

Over the last two weeks, the Supreme Court has cemented its reputation as a court that has turned its back on the lingering injustices of the Bush administration, which have, in addition, been endorsed and defended by President Obama. In the first instance, on May 16, the Court refused to grant a day in court to five victims of “extraordinary rendition,” who have been trying, since May 2007, to have a court hear their stories of how they were abducted and sent to be tortured in locations around the world with the help of Jeppesen Dataplan, Inc., a subsidiary of Boeing, which, it is clear, acted as the CIA’s travel agent for torture.

The five plaintiffs — who include the British residents Binyam Mohamed, rendered to torture in Morocco, and Bisher al-Rawi, kidnapped on business in the Gambia and rendered to the CIA’s “Dark Prison” in Afghanistan — won a crucial appeal in their case in March 2009, in the Ninth Circuit Court of Appeals, when the government’s attempt to protect itself (and its predecessors) from scrutiny by invoking the little known and little used “state secrets doctrine” was thwarted by a panel of three judges, who ruled that the executive branch’s claim that it was entitled to dismiss lawsuits merely by invoking the words “national security” would “effectively cordon off all secret actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.”

That ruling, however, was overturned last September, when a full panel of judges supported the government’s unprincipled use of the “state secrets doctrine.” As I explained at the time:

[W]hen 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.

In declining to review the men’s case, the Supreme Court has, as described in a strongly worded editorial in the New York Times, “abdicated [its] duty” and allowed “a major stain on American justice” to proceed unchecked.

The Times‘ editors did not mince their words. After noting that the abduction of “often innocent” foreigners, and their rendition to “countries well known for torturing prisoners” was “central to President George W. Bush’s antiterrorism policy,” and that he “then used wildly broad claims of state secrets to thwart any accountability for this immoral practice,” they added that “President Obama has adopted the same legal tactic of using the secrecy privilege to kill lawsuits,” and that therefore the only hope lay with the courts.

The editors’ verdict on the Supreme Court was harsh but completely justified. After noting first of all that the Ninth Circuit Court of Appeals “gave in to the pretzel logic shaped by the Bush administration that allowing the torture victims a chance to make their case in court using nonsecret evidence would risk divulging state secrets,” and that the Supreme Court has now “allowed that nonsense to stand,” the editors added:

By slamming its door on these victims without explanation, it removed the essential judicial block against the executive branch’s use of claims of secrecy to cover up misconduct that shocks the conscience. It has further diminished any hope of obtaining a definitive ruling that the government’s conduct was illegal — a vital step for repairing damage and preventing future abuses.

They also stated:

The Supreme Court should have grabbed the case and used it to rein in the distorted use of the state secrets privilege, a court-created doctrine meant to shield sensitive evidence in actions against the government, not to dismiss cases before evidence is produced.

In conclusion, the Times‘ editors pointed out that this was “not the first time the Supreme Court has abdicated its responsibility to hear cases involving national security questions of this sort,” lamenting that not even a single one of the justices was prepared to offer “a dissent or comment to let the world know that the court’s indifference was not unanimous,” either in the Jeppesen case, or, last year, in the case of Maher Arar, an innocent Canadian sent to Syria by George W. Bush to be tortured, or even, in 2007, in the case of Khaled El-Masri, a German citizen, seized by mistake, who was rendered to a torture prison in Afghanistan.

“What the world sees,” the editors added, “is rendition victims blocked from American courts while architects of their torment write books bragging about their role in this legal and moral travesty … The Supreme Court’s action ends an important legal case, but not President Obama’s duty to acknowledge what occurred, and to come up with ways to compensate torture victims and advance accountability.”

Unfortunately, as they also added, “It is hard, right now, to be optimistic.”

The Supreme Court fails to tackle torture in the future

In its second recent abdication of responsibility, the Supreme Court dismissed the last of the Guantánamo-related cases to come before them on May 23, with only two dissenters, Justice Stephen G. Breyer and Justice Sonia Sotomayor, prepared to consider Khadr v. Obama, a case named after Omar Khadr, but now, after Khadr accepted a plea deal last October, dealing solely with the question of whether the courts have any say in where Guantánamo prisoners are sent.

Related to Kiyemba v. Obama, the Uighurs’ case, which involved other questions regarding the courts’ ability to dictate where Guantánamo prisoners are — or are not — sent, the focus in Khadr was an attempt by prisoners to prevent the administration from forcibly repatriating them to countries where they fear the risk of torture. In defense of the administration, this has not often been an issue, although President Bush repatriated two Tunisians unwillingly, and Obama has done the same with two Algerians, but it remains a worry (as, for example, in the case of Ahmed Belbacha, an Algerian who is terrified of being repatriated), and it is, of course, disappointing that only two justices were prepared to consider the prisoners’ legitimate fears.

Instead, they have, once more, handed the decision making process to the D.C. Circuit Court, where judges, using a narrow reading of an Iraq detention case (Munaf v. Geren) decided on the same day as Boumediene, have ruled, as SCOTUSblog described it, that they have almost no power “to control the ultimate fate of Guantánamo detainees,” and that the prisoners themselves “have no other constitutional rights than a basic right to file a habeas challenge to their detention.” The Circuit Court also ruled that a 2005 federal immigration law “bars a Guantánamo detainee from making a claim in US court that a transfer to a given nation will violate a global treaty against torture.”

With this decision, as SCOTUSblog noted, “The chances that the Supreme Court will review the way lower courts have implemented its constitutional decision on the legal rights of detainees at Guantánamo Bay moved close to the vanishing point .” It was also noted, in what could almost be read as a sad epitaph for any hope that the law will ever lead to the closure of Guantánamo:

In terms of constitutional history, the Court’s sweeping declarations in the Boumediene decision, about the role of the judiciary in keeping the government from switching the Constitution on and off, now appear to have meant far less as a check on Executive power than they had seemed when that ruling came down in June 2008. And, while that decision might once have seemed to hold out the promise of ending the detention of many held at Guantánamo, it now appears to mean that some will remain at Guantánamo for years to come, and that facility will remain open indefinitely.

And that, in the end, is not something that the Supreme Court foresaw when the ruling in Boumediene was issued, and nor, furthermore, should it be something that the Court can now continue to ignore indefinitely.

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, Twitter, Digg and YouTube). 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, on tour in the UK throughout 2011, and available on DVD here — or here for the US), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation, as “The Supreme Court’s Failure to Tackle Torture, Now and Forever.”

Jessen and Mitchell did this by taking torture techniques taught in US military schools to train US military personnel to resist torture if captured (the program known as SERE — Survival, Evasion, Resistance, Escape), and reverse engineering them for use in the real-life interrogations of alleged terror suspects. And as the article lays out in clear detail for the first time, the purpose was not just to obtain intelligence, as was always asserted in public by senior officials: “Rather, as Jessen’s notes explain, torture was used to ‘exploit’ detainees, that is, to break them down physically and mentally, in order to get them to ‘collaborate’ with government authorities.”

Jessen’s role in the torture program — and the disgraceful way in which his and Mitchell’s actions went against the advice of most of their colleagues, and were viewed by many as a fundamental betrayal of their professional responsibilities — have been previously established over several years, and are spelled out most clearly in a detailed report on detainee treatment that was issued by the Senate Armed Services Committee in December 2008 (PDF). This devastating document, which lays out a clear chronology explaining how the torture prgram was introduced, and how all dissenting voices were sidelined or silenced or ignored, ought to have provided much of the evidence for the prosecution of George W. Bush and other senior officials in his administration for authorizing the use of torture, had there been the will to do so.

However, as we now know to our disappointment — and to America’s undying shame — there was no political will to pursue those in the Bush adminstration who did all they could to drag America down to the level of the most vilified human rights abusers on earth, and there is still no political will today, with the result that, in those parts of the country and of the American psyche that have been infected by the unchallenged sins of the torturers, the prevailing view of America and its role in the world is now even more feral and cruel than it was under George W. Bush.

Although much of Jessen’s story has been exposed before, Leopold and Kaye shine new light on it through the central involvement in their exposé of retired Air Force Capt. Michael Kearns, a former friend and colleague of Jessen’s who “said he decided to come forward” because he was “outraged that Jessen used their work to help design the Bush administration’s torture program.” In September 2009, Capt. Kearns stumbled upon documents prepared by Jessen 20 years ago, and, as a result, was physically sick when he realized how his former colleague had paved the way for the torture program that, after 9/11, he implemented with James Mitchell, infecting the whole of the United States’ detention policies, from Afghanistan to Iraq, and from Guantánamo to the CIA’s secret prisons, with the “dark side” of the SERE program, reverse engineered and brought to inappropriate life in real-life situations.

I had the pleasure to meet Capt. Kearns and to get to know him over several days last October in Berkeley, where I was a special guest of the organizers of “Berkeley Says No to Torture” Week, and, as well as finding him to be a very sympathetic character, it was also impossible not to be struck by the intensity with which he regarded Jessen’s betrayal of the SERE program, turning something that was designed to prevent harm to US soldiers in the field into something completely different — a template for the torture of foreign prisoners seized in the “War on Terror.”

As he explained to Leopold and Kaye, Jessen’s template for the “full exploitation” of prisoners, rather than just their interrogation, was designed to be used for propaganda purposes, “or other needs [of] the detaining power, such as the recruitment of informers and double agents.” As he added, “Those aspects of the US detainee program have not generally been discussed as part of the torture story in the American press.”

After talking to Capt. Kearns in October, it became apparent — as is also emphasized in Leopold and Kaye’s article — that what Jessen (and Mitchell) did was not only to reverse engineer the techniques for use in the real world, but also to reverse engineer the program’s intent, turning its practioners from careful advisors, trying to mitigate the effects of torture on US personnel, into actual torturers, indistinguishable from the foreign torturers aganst whom the SERE program was designed as a protection. As Capt. Kearns says at the end of Leopold and Kaye’s excellent article, cross-posted below, “Bruce Jessen knew better. His duplicitous act is appalling to me and shall haunt me for the rest of my life.”

EXCLUSIVE: CIA Psychologist’s Notes Reveal True Purpose Behind Bush’s Torture Program
By Jason Leopold and Jeffrey Kaye, Truthout, March 22, 2011

Dr. Bruce Jessen’s handwritten notes describe some of the torture techniques that were used to “exploit” ”war on terror” detainees in custody of the CIA and Department of Defense.

Bush administration officials have long asserted that the torture techniques used on “war on terror” detainees were utilized as a last resort in an effort to gain actionable intelligence to thwart pending terrorist attacks against the United States and its interests abroad.

But the handwritten notes obtained exclusively by Truthout drafted two decades ago by Dr. John “Bruce” Jessen, the psychologist who was under contract to the CIA and credited as being one of the architects of the government’s top-secret torture program, tell a dramatically different story about the reasons detainees were brutalized and it was not just about obtaining intelligence. Rather, as Jessen’s notes explain, torture was used to “exploit” detainees, that is, to break them down physically and mentally, in order to get them to “collaborate” with government authorities. Jessen’s notes emphasize how a “detainer” uses the stresses of detention to produce the appearance of compliance in a prisoner.

Indeed, a report released in 2009 by the Senate Armed Services Committee about the treatment of detainees in US custody said Jessen was the author of a “Draft Exploitation Plan” presented to the Pentagon in April 2002 that was implemented  at Guantánamo and at prison facilities in Iraq and Afghanistan. But to what degree is unknown because the document remains classified. Jessen also co-authored a memo in February 2002 on “Prisoner Handling Recommendations” at Guantánamo, which is also classified.

Moreover, the Armed Services Committee’s report noted that torture techniques approved by the Bush administration were based on survival training exercises US military personnel were taught by individuals like Jessen if they were captured by an enemy regime and subjected to “illegal exploitation” in violation of the Geneva Conventions.

Jessen’s notes, prepared for an Air Force survival training course that he later “reverse engineered” when he helped design the Bush administration’s torture program, however, go into far greater detail than the Armed Services Committee’s report in explaining how prisoners would be broken down physically and psychologically by their captors. The notes say survival training students could “combat interrogation and torture” if they are captured by an enemy regime by undergoing intense training exercises, using “cognitive” and “exposure techniques” to develop “stress inoculation.” [Click here to download a PDF file of Jessen's handwritten notes. Click here to download a zip file of Jessen's notes in typewritten form.]

The documents stand as the first piece of hard evidence to surface in nine years that further explains the psychological aspects of the Bush administration’s torture program and the rationale for subjecting detainees to so-called “enhanced interrogation techniques.”

Jessen’s notes were provided to Truthout by retired Air Force Capt. Michael Kearns, a “master” SERE instructor and decorated veteran who has previously held high-ranking positions within the Air Force Headquarters Staff and Department of Defense (DoD).

Kearns and his boss, Roger Aldrich, the head of the Air Force Intelligence’s Special Survial Training Program (SSTP), based out of Fairchild Air Force Base in Spokane, Washington, hired Jessen in May 1989. Kearns, who was head of operations at SSTP and trained thousands of service members, said Jessen was brought into the program due to an increase in the number of new survival training courses being taught and “the fact that it required psychological expertise on hand in a full-time basis.”

“Special Mission Units”

Jessen, then the chief of Psychology Service at the US Air Force Survival School, immediately started to work directly with Kearns on “a new course for special mission units (SMUs), which had as its goal individual resistance to terrorist exploitation.”

The course, known as SV-91, was developed for the Survival Evasion Resistance Escape (SERE) branch of the US Air Force Intelligence Agency, which acted as the Executive Agent Action Office for the Joint Chiefs of Staff. Jessen’s notes formed the basis for one part of SV-91, “Psychological Aspects of Detention.”

Special mission units fall under the guise of the DoD’s clandestine Joint Special Operations Command (JSOC) and engage in a wide-range of highly classified counterterrorist and covert operations, or “special missions,” around the world, hundreds of whom were personally trained by Kearns. The SV-91 course Jessen and Kearns were developing back in 1989 would later become known as “Special Survival for Special Mission Units.”

Before the inception of SV-91, the primary SERE course was SV-80, or Basic Combat Survival School for Resistance to Interrogation, which is where Jessen formerly worked. When Jessen was hired to work on SV-91, the vacancy at SV-80 was filled by psychologist Dr. James Mitchell, who was also contracted by the CIA to work at the agency’s top-secret black site prisons in Europe employing SERE torture techniques, such as the controlled drowning technique know as waterboarding, against detainees.

While they were still under contract to the CIA, the two men formed the “consulting” firm Mitchell, Jessen & Associates in March 2005. The “governing persons” of the company included Kearns’ former boss, Aldrich, SERE contractor David Tate, Joseph Matarazzo, a former president of the American Psychological Association and Randall Spivey, the ex-chief of Operations, Policy and Oversight Division of JPRA.

Mitchell, Jessen & Associates’ articles of incorporation have been “inactive” since October 22, 2009 and the business is now listed as “dissolved,” according to Washington state’s Secretary of State website.

Lifting the “Veil of Secrecy”

Kearns was one of only two officers within DoD qualified to teach all three SERE-related courses within SSTP on a worldwide basis, according to a copy of a 1989 letter written by Aldrich, who nominated Kearns officer of the year.

He said he decided to come forward because he is outraged that Jessen used their work to help design the Bush administration’s torture program.

“I think it’s about time for SERE to come out from behind the veil of secrecy if we are to progress as a moral nation of laws,” Kearns said during a wide-ranging interview with Truthout. “To take this survival training program and turn it into some form of nationally sanctioned, purposeful program for the extraction of information, or to apply exploitation, is in total contradiction to human morality, and defies basic logic. When I first learned about interrogation, at basic intelligence training school, I read about Hans Scharff, a Nazi interrogator who later wrote an article for Argosy Magazine titled ‘Without Torture.’ That’s what I was taught — torture doesn’t work.”

What stands out in Jessen’s notes is that he believed torture was often used to produce false confessions. That was the end result after one high-value detainee who was tortured in early 2002 confessed to having information proving a link between the late Iraqi dictator Saddam Hussein and al-Qaeda, according to one former Bush administration official.

It was later revealed, however, that the prisoner, Ibn al-Shaykh al-Libi, had simply provided his captors a false confession so they would stop torturing him. Jessen appeared to be concerned with protecting the US military against falling victim to this exact kind of physical and psychological pressure in a hostile detention environment, recognizing that it would lead to, among other things, false confessions.

In a paper Jessen wrote accompanying his notes, “Psychological Advances in Training to Survive Captivity, Interrogation and Torture,” which was prepared for the symposium: “Advances in Clinical Psychological Support of National Security Affairs, Operational Problems in the Behavioral Sciences Course,” he suggested that additional “research” should be undertaken to determine “the measurability of optimum stress levels in training students to resist captivity.”

“The avenues appear inexhaustible” for further research in human exploitation, Jessen wrote.

Such “research” appears to have been the main underpinning of the Bush administration’s torture program. The experimental nature of these interrogation methods used on detainees held at Guantánamo and at CIA black site prisons have been noted by military and intelligence officials. The Armed Services Committee report cited a statement from Col. Britt Mallow, the commander of the Criminal Investigative Task Force (CITF), who noted that Guantánamo officials Maj. Gen. Mike Dunleavy and Maj. Gen. Geoffrey Miller used the term “battle lab” to describe the facility, meaning “that interrogations and other procedures there were to some degree experimental, and their lessons would benefit [the Department of Defense] in other places.”

What remains a mystery is why Jessen took a defensive survival training course and helped turn it into an offensive torture program.

Truthout attempted to reach Jessen over the past two months for comment, but we were unable to track him down. Messages left for him at a security firm in Alexandria, Virginia he has been affiliated with were not returned and phone numbers listed for him in Spokane were disconnected.

A New Emphasis on Terrorism

SV-91 was developed to place a new emphasis on terrorism as SERE-related courses pertaining to the cold war, such as SV-83, Special Survival for Sensitive Reconnaissance Operations (SRO), whose students flew secret missions over the Soviet Union, Eastern Bloc, and other communist countries, were being scaled back.

SSTP evolved into the Joint Personnel Recovery Agency (JPRA), the DoD’s executive agency for SERE training, and was tapped by DoD General Counsel William “Jim” Haynes in 2002 to provide the agency with a list of interrogation techniques and the psychological impact those methods had on SERE trainees, with the aim of utilizing the same methods for use on detainees. Aldrich was working in a senior capacity at JPRA when Haynes contacted the agency to inquire about SERE.

The Army also runs a SERE school as does the Navy, which had utilized waterboarding as a training exercise on Navy SERE students that JPRA recommended to DoD as one of the torture techniques to use on high-value detainees.

Kearns said the value of Jessen’s notes, particularly as they relate to the psychological aspects of the Bush administration’s torture program, cannot be overstated.

“The Jessen notes clearly state the totality of what was being reverse-engineered — not just ‘enhanced interrogation techniques,’ but an entire program of exploitation of prisoners using torture as a central pillar,” he said. “What I think is important to note, as an ex-SERE Resistance to Interrogation instructor, is the focus of Jessen’s instruction. It is exploitation, not specifically interrogation.

“And this is not a picayune issue, because if one were to ‘reverse-engineer’ a course on resistance to exploitation then what one would get is a plan to exploit prisoners, not interrogate them. The CIA/DoD torture program appears to have the same goals as the terrorist organizations or enemy governments for which SV-91 and other SERE courses were created to defend against: the full exploitation of the prisoner in his intelligence, propaganda, or other needs held by the detaining power, such as the recruitment of informers and double agents. Those aspects of the US detainee program have not generally been discussed as part of the torture story in the American press.”

Ironically, in late 2001, while the DoD started to make inquiries about adapting SERE methods for the government’s interrogation program, Kearns received special permission from the US government to work as an intelligence officer for the Australian Department of Defence to teach the Australian Special Air Service (SAS) how to use SERE techniques to resist interrogation and torture if they were captured by terrorists. Australia had been a staunch supporter of the invasion of Afghanistan and sent troops there in late 2001.

Kearns, who recently waged an unsuccessful Congressional campaign in Colorado, was working on a spy novel two years ago and dug through boxes of “unclassified historical materials on intelligence” as part of his research when he happened to stumble upon Jessen’s notes for SV-91. He said he was “deeply shocked and surprised to see I’d kept a copy of these handwritten notes as certainly the originals would have been destroyed (shredded)” once they were typed up and made into proper course materials.

“I hadn’t seen these notes for over twenty years,” he said. “However, I’ll never forget that day in September 2009 when I discovered them. I instantly felt sick, and eventually vomited because I felt so badly physically and emotionally that day knowing that I worked with this person and this was the material that I believe was ‘reverse-engineered’ and used in part to design the torture program. When I found the Jessen papers, I made several copies and sent them to my friends as I thought this could be the smoking gun, which proves who knew what and when and possibly who sold a bag of rotten apples to the Bush administration.”

Kearns was, however, aware of the role SERE played in the torture program before he found Jessen’s notes, and in July 2008, he sent an email to the chairman of the Armed Services Committee, Sen. Carl Levin, who was investigating the issue and offered to share information with Levin about Jessen and the SERE program in general. The Michigan Democrat responded to Kearns saying he was “concerned about this issue” and that he “needed more information on the subject,” but Levin never followed up when Kearns offered to help.

“I don’t know how it went off the tracks, but the names of the people who testified at the Senate Armed Services, Senate Judiciary, and Select Intelligence committees were people I worked with, and several I supervised,” Kearns said. “It makes me sick to know people who knew better allowed this to happen.”

Levin’s office did not return phone calls or emails for comment. However, the report he released in April 2009, “Inquiry Into the Treatment of Detainees in US Custody,” refers to SV-91. The report includes a list of acronyms used throughout the report, one of which is “S-V91,” identified as “the Department of Defense High Risk Survival Training” course. But there is no other mention throughout the report of SV-91 or the term “High Risk Survival Training,” possibly due to the fact that sections of the report where it is discussed remain classified. Still, the failure by Levin and his staff to follow up with Kearns — the key military official who had retained Jessen’s notes and helped develop the very course those notes were based upon that was cited in the report — suggests Levin’s investigation is somewhat incomplete.

Control and Dependence

A copy of the syllabus for SV-91, obtained by Truthout from another source who requested anonymity, states that the class was created “to provide special training for selected individuals that will enable them to withstand exploitation methods in the event of capture during peacetime operations … to cope with such exploitation and deny their detainers useable information or propaganda.”

Although the syllabus focuses on propaganda and interrogation for information as the primary means of exploiting prisoners, Jessen’s notes amplify what was taught to SERE students and later used against detainees captured after 9/11 . He wrote that a prisoner’s captors seek to “exploit” the prisoner through control and dependence.

“From the moment you are detained (if some kind of exploitation is your Detainer’s goal) everything your Detainer does will be contrived to bring about these factors: CONTROL, DEPENDENCY, COMPLIANCE AND COOPERATION,” Jessen wrote. “Your detainer will work to take away your sense of control. This will be done mostly by removing external control (i.e., sleep, food, communication, personal routines etc.) … Your detainer wants you to feel ‘EVERYTHING’ is dependent on him, from the smallest detail, (food, sleep, human interaction), to your release or your very life … Your detainer wants you to comply with everything he wishes. He will attempt to make everything from personal comfort to your release unavoidably connected to compliance in your mind.”

Jessen wrote that cooperation is the “end goal” of the detainer, who wants the detainee “to see that [the detainer] has ‘total’ control of you because you are completely dependent on him, and thus you must comply with his wishes. Therefore, it is absolutely inevitable that you must cooperate with him in some way (propaganda, special favors, confession, etc.).”

Jessen described the kinds of pressures that would be exerted on the prisoner to achieve this goal, including “fear of the unknown, loss of control, dehumanization, isolation,” and use of sensory deprivation and sensory “flooding.” He also included “physical” deprivations in his list of detainer “pressures.”

“Unlike everyday experiences, however, as a detainee we could be subjected to stressors/coercive pressures which we cannot completely control,” he wrote. “If these stressors are manipulated and increased against us, the cumulative effect can push us out of the optimum range of functioning. This is what the detainer wants, to get us ‘off balance.’”

“The Detainer wants us to experience a loss of composure in hopes we can be manipulated into some kind of collaboration …” Jessen wrote. “This is where you are most vulnerable to exploitation. This is where you are most likely to make mistakes, show emotions, act impulsively, become discouraged, etc. You are still close enough to being intact that you would appear convincing and your behavior would appear ‘uncoerced.’”

Kearns said, based on what he has read in declassified government documents and news reports about the role SERE played in the  Bush administration’s torture program, Jessen clearly “reverse-engieered” his lesson plan and used resistance methods to abuse “war on terror” detainees.

The SSTP course was “specifically and intentionally designed to assist American personnel held in hostile detention,” Kearns said. It was “not designed for interrogation, and certainly not torture. We were not interrogators; we were ‘role-players’ who introduced enemy exploitation techniques into survival scenarios as student learning objectives in what could be called Socratic-style dilemma settings. More specifically, resistance techniques were learned via significant emotional experiences, which were intended to inculcate long-term valid and reliable survival routines in the student’s memory. The one rule we had was ‘hands off.’ No (human intelligence) operator could lay hands on a student in a ‘role play scenario’ because we knew they could never ‘go there’ in the real world.”

But after Jessen was hired, Kearns contends, Aldrich immediately trained him to become a mock interrogator using “SERE harsh resistance to interrogation methods even though medical services officers were explicitly excluded from the ‘laying on’ of hands in [resistance] ‘role-play’ scenarios.”

Aldrich, who now works with the Center for Personal Protection & Safety in Spokane, did not return calls for comment.

“Torture Paper”

The companion paper Jessen included with his notes, which was also provided to Truthout by Kearns, eerily describes the same torturous interrogation methods US military personnel would face during detention that Jessen and Mitchell “reverse engineered” a little more than a decade later and that the CIA and DoD used against detainees.

Indeed, in a subsection of the paper, “Understanding the Prisoner of War Environment,” Jessen notes how a prisoner will be broken down in an attempt to get him to “collaborate” with his “detainer.”

“This issue of collaboration is ‘the most prominent deliberately controlled force against the (prisoner of war),” Jessen wrote. “The ability of the (prisoner of war) to successfully resist collaboration and cope with the obviously severe approach-avoidance conflict is complicated in a systematic and calculated way by his captors.

“These complications include: Threats of death, physical pressures including torture which result in psychological disturbances or deterioration, inadequate diet and sanitary facilities with constant debilitation and illness, attacks on the mental health via isolation, reinforcement of anxieties, sleeplessness, stimulus deprivation or flooding, disorientation, loss of control both internal and external locus, direct and indirect attack on the (prisoner of war’s) standards of honor, faith in himself, his organization, family, country, religion, or political beliefs … Few seem to be able to hold themselves completely immune to such rigorous behavior throughout all the vicissitudes of long captivity. Confronted with these conditions, the unprepared prisoner of war experiences unmanageable levels of fear and despair.”

“Specific (torture resistance) techniques,” Jessen wrote, “taught to and implemented by the military member in the prisoner of war setting are classified” and were not discussed in the paper he wrote. He added, “Resistance Training students must leave training with useful resistance skills and a clear understanding that they can successfully resist captivity, interrogation or torture.”

Kearns also declined to cite the specific interrogation techniques used during SERE training exercises because that information is still classified. Nor would he comment as to whether the interrogations used methods that matched or were similar to those identified in the August 2002 torture memo prepared by former Justice Department attorneys John Yoo and Jay Bybee.

However, according to the Senate Armed Services Committee report, “SERE resistance training … was used to inform” Yoo and Bybee’s torture memo, specifically, nearly a dozen of the brutal techniques detainees were subjected to, which included waterboarding, sleep deprivation, painful stress positions, wall slamming and placing detainees in a confined space, such as a container, where his movement is restricted. The CIA’s Office of Technical Services told Yoo and Bybee the SERE techniques used to inform the torture memo were not harmful, according to declassified government documents.

Many of the “complications,” or torture techniques Jessen wrote about, declassified government documents show, became a standard method of interrogation and torture used against all of the high-value detainees in custody of the CIA in early 2002, including Abu Zubaydah and self-professed 9/11 mastermind Khalid Sheikh Mohammed, as well as detainees held at Guantánamo and prison facilities in Iraq and Afghanistan.

The issue of “collaborating” with one’s detainer, which Jessen noted was the most important in terms of controlling a prisoner, is a common theme among the stories of detainees who were tortured and later released from Guantánamo.

For example, Mamdouh Habib, an Australian citizen who was rendered to Egypt and other countries where he was tortured before being sent to Guantánamo, wrote in his memoir, My Story: the Tale of a Terrorist Who Wasn’t, after he was released without charge, that interrogators at Guantánamo “tried to make detainees mistrust one another so that they would inform on each other during interrogation.”

Binyam Mohamed, an Ethiopian-born British citizen, who the US rendered to a black site prison in Morocco, said that a British intelligence informant, a person he knew and who was recurited, came to him in his Moroccan cell and told him that if he became an intelligence asset for the British, his torture, which included scalpel cuts to his penis, would end. In [February 2010], British government officials released documents that show Mohamed was subjected to SERE torture techniques during his captivity in the spring of 2002.

Abdul Aziz Naji, an Algerian prisoner at Guantánamo until he was forcibly repatriated against his wishes to Algeria in July 2010, told an Algerian newspaper that “some detainees had been promised to be granted political asylum opportunity in exchange of [sic] a spying role within the detention camp.”

Mohamedou Ould Salahi, whose surname is sometimes spelled “Slahi,” is a Mauritanian who was tortured in Jordan and Guantánamo. Investigative journalist Andy Worthington reported that Salahi was subjected to “prolonged isolation, prolonged sleep deprivation, beatings, death threats, and threats that his mother would be brought to Guantánamo and gang-raped” unless he collaborated with his interrogators. Salahi finally decided to become an informant for the US in 2003. As a result, Salahi was allowed to live in a special fenced-in compound, with television and refrigerator, allowed to garden, write and paint, “separated from other detainees in a cocoon designed to reward and protect.”

Still, despite collaborating with his detainers, the US government mounted a vigorous defense against Salahi’s petition for habeas corpus. His case continues to hang in legal limbo. Salahi’s fate speaks to the lesson Habib said he learned at Guantánamo: “you could never satisfy your interrogator.” Habib felt informants were never released “because the Americans used them against the other detainees.”

Jessen’s and Mitchell’s mutimillion dollar government contract was terminated by CIA Director Leon Panetta in 2009. According to an Associated Press report, the CIA agreed to pay — to the tune of $5 million — the legal bills incurred by their consulting firm.

Recently a complaint filed against Mitchell with the Texas State Board of Examiners of Psychologists by a San Antonio-based psychologist, an attorney who defended three suspected terrorists imprisoned at Guantánamo and by Zubaydah’s attorney Joseph Margulies. Their complaint sought to strip Mitchell of his license to practice psychology for violating the board’s rules as a result of the hands-on role he played in torturing detainees, was dismissed due to what the board said was a lack of evidence. Mitchell, who lives in Florida, is licensed in Texas. A similar complaint against Jessen may soon be filed in Idaho, where he is licensed to practice psychology.

Kearns, who took a graduate course in cognitive psychotherapy in 1988 taught by Jessen, still can’t comprehend what motivated his former colleague to turn to the “dark side.”

“Bruce Jessen knew better,” Kearns said, who retired in 1991 and is now working on his Ph.D in educational psychology. “His duplicitous act is appalling to me and shall haunt me for the rest of my life.”

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, Twitter, Digg and YouTube). 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, on tour in the UK throughout 2011, and available on DVD here — or here for the US), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

Ever since Prime Minister David Cameron announced the inquiry last July, deep doubts have been expressed about the scope of the inquiry and fears of a whitewash. Less than two weeks after Cameron’s announcement, Reprieve’s director, Clive Stafford Smith, wrote a letter to Gibson in which he called on him to step down from his role as the judge in charge of the inquiry, complaining that “his impartiality is fatally compromised,” and noting that, “As the Intelligence Services Commissioner (ISC), it has been Sir Peter’s job for more than four years to oversee the Security Services,” and as a result “he cannot now be the judge of whether his own work was effective.”

In September, the nine NGOs mentioned above wrote a letter to Sir Peter Gibson outlining their concerns, explaining 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,” they wrote.

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.”

These points were made forcefully in the September letter, but they were, however, couched in polite terms, with the NGOs “offer[ing] a number of constructive comments to ensure the success of the inquiry.” In contrast, in a recent letter from the NGOs, which followed a number of meetings with Gibson, the groups involved expanded on the concerns outlined in September, stating, in no uncertain terms that, as the Guardian put it, “the credibility of the inquiry risks being undermined by the high level of secrecy it appears will surround the hearings — at the insistence of the very agencies whose activities are being scrutinised.”

In particular, the NGOs expressed concern that, as the Guardian put it, the inquiry would “fail to meet the UK’s obligations under the European convention on human rights,” which “establishes standards that must be met by official investigations into torture.” These include “the need for a mechanism independent of government to decide what evidence should be made public, and powers to compel evidence.”

In the letter, the NGOs specifically warned that a higher level of public scrutiny is needed “to prevent any appearance of [the government's] ongoing collusion in or tolerance of unlawful acts.”

When David Cameron announced the inquiry in July, he stated that the reputation of Britain’s security services had been “overshadowed” by allegations of complicity in torture, and had decided that it was “time to clear this matter up once and for all.” Although the government had not been compelled to order an inquiry, pressure for it had come from a seemingly unlikely source — William Hague, the foreign secretary, who had spoken about it on numerous occasions when in opposition — and was driven by a recognition that, particularly with reference to Binyam Mohamed, a British resident who was rendered by the CIA to Morocco (where he was held and tortured for 18 months) after being seized in Pakistan, and was then held in Guantánamo until his release in February 2009, there had been what the Guardian described as “a series of damning court judgments that detailed MI5′s knowledge of the way in which Binyam Mohamed was being tortured before one of its officers questioned him.”

This was all that had come out in court, and it had involved an 18-month game of cat-and-mouse between two high court judges and foreign secretary David Miliband, who had repeatedly (and rather desperately) warned that public disclosure of a summary of Mohamed’s treatment at the hands of the Americans, compiled by the judges, would endanger the intelligence-sharing relationship between the US and the UK.

In February last year, the Court of Appeal brought his obstruction to an end and ordered the release of the summary, but much more of Mohamed’s story — including claims that he was visited in Morocco by a British agent, and by a prisoner-turned-informer captured in Afghanistan — remains barely reported, although it clearly needs to be investigated by Sir Peter Gibson, and is, in addition, information that, like Mohamed’s torture in Pakistan, is of importance to the public because it touches on questions of complicity in torture that should not be hidden from view in a country that claims to treat torture with the repugnance it deserves.

The case of Binyam Mohamed was the most high-profile case involving a prisoner who ended up in Guantánamo, but on a domestic level the government was also under pressure because of an accumulation of media reports  — largely in the Guardian — providing disturbing details of “terrorism suspects being questioned by MI5 and MI6 officers after being tortured in secret prisons around the world.”

They include Rangzieb Ahmed, from Rochdale, who received a life sentence on terrorism charges in December 2008, although he has claimed that, in the 13 months that he was held In Pakistan before he was returned to the UK to face a trial, he was tortured — and had three of his fingernails pulled out — by Pakistani operatives who asked him questions drawn up by MI5 and Manchester police, even though both parties knew that their Pakistani counterparts used torture. Ahmed has just lost an appeal against his sentence, on the frankly risible basis that, although “he may have been subjected to the ‘lesser evil’ of cruel, inhuman or degrading treatment, ‘torture had not been demonstrated to have occurred, and had been demonstrated not to have occurred before the sole occasion when Rangzieb said he had been seen by British officers,’” as the Guardian described it.

As the Guardian also explained, getting to the heart of what should be the inquiry’s remit, if there is not to be a whitewash, “Gibson is expected to examine the degree of ministerial oversight of such operations and the extent to which ministers and intelligence agents were complicit in torture and illegal ‘rendition’ of terrorism suspects from one country to another.”

There are, however, two more issues relating to the inquiry that are of concern, and that need to be resolved before it can begin, and both, at least partly, involve Shaker Aamer, the last British resident in Guantánamo, who is still held despite being cleared for release by a military review board in 2007, when President Bush was still in power.

The first of these concerns an ongoing Metropolitan Police inquiry into allegations that representatives of MI5 ands MI6 were complicit in torture. One, as the Guardian put it, “involves allegations that an MI6 officer was involved in the mistreatment of one detainee, who has not been publicly identified,” and the other involves claims made by Shaker Aamer, which were first exposed in a court case in the UK in December 2009, that British agents were in the room when he was tortured by US operatives in the US prison in Kandahar prior to his transfer to Guantánamo in February 2002.

When he announced the inquiry in July, David Cameron told the House of Commons that it could not start “while criminal investigations are ongoing.” One other investigation, into the agent who interrogated Binyam Mohamed in Pakistan, concluded last November with Keir Starmer, the Director of Public Prosecutions, stating that there was insufficient evidence to press charges, although he made a point of noting that a “wider investigation into other potential criminal conduct” was still ongoing. However, as the Guardian reported, “Gibson has indicated that he expects his inquiry to begin hearing evidence in March, which may indicate that he has reason to believe neither police investigation will result in criminal charges.”

Even if this is true, Shaker Aamer’s allegations of torture provide another obstacle to the launch of the inquiry, as it cannot legitimately begin while he is still held, because he is undoubtedly an important witness, whose testimony Sir Peter Gibson will need to hear if the inquiry is to have any credibility. The Guardian noted that, although Jamil Rahman, a British citizen, alleges that British agents “walked into a cell in Dhaka, Bangladesh, where he was being tortured, but retreated, laughing, before returning to question him later,” Shaker Aamer is the only prisoner to have “alleged that he was tortured while British intelligence officers were present.”

Ever since the inquiry was announced — timed in particular to suppress alarming disclosures of the complicity of Tony Blair and Jack Straw in the rendition to Guantánamo of British citizens and residents, which were emerging, at the orders of senior judges, from a civil claim for damages against the government that was brought by seven former Guantanamo prisoners — the need for Shaker Aamer’s return has been pressing.

When 15 former prisoners reached a financial settlement with the government in November, it was revealed that Shaker Aamer was also included in the settlement, although there was, of course, no way that he could conclude the settlement while he was still in Guantánamo. In subsequent statements, former prisoners revealed that they had all pushed the coalition government for his return, alerting ministers and civil servants to his plight, and his importance to them, and apparently securing a promise that, unlike the Labour government — which, it was revealed, had neglected his case, while stating in public that they were pressing for his return — they would be pushing their US counterparts to release him.

Despite this, Shaker Aamer is still held, and while the nine NGOs mentioned above are right to press the government and Sir Peter Gibson to make sure that the proposed inquiry will not be a whitewash, it remains even more troubling that plans for the inquiry appear to be moving ahead without securing Shaker Aamer’s return.

To his lawyers, and to his supporters, Shaker Aamer is “the man who knows too much,” a fearless advocate for the prisoners’ rights, who knows an enormous amount about the dark secrets of Guantánamo, including the deeply suspicious deaths of three prisoners in June 2006. This almost certainly explains why the US government is reluctant to release him, and why the UK may not be in any hurry to have him back here either, but if David Cameron is to have any chance of drawing a lne under British complicity in torture, the immediate return of Shaker Aamer is just as important as the terms of reference for the government’s inquiry.

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, on tour in the UK throughout 2011, and available on DVD here), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners.

Described as “a powerful film that has helped ensure that Guantánamo and the men unlawfully held there have not been forgotten” by Kate Allen, the director of Amnesty International UK, and as “a strong movie examining the imprisonment and subsequent torture of those falsely accused of anti-American conspiracy” by Time Out, “Outside the Law: Stories from Guantánamo” tells the story of Guantánamo  (including sections on extraordinary rendition and secret prisons) with a particular focus on how the Bush administration turned its back on domestic and international laws, how prisoners were rounded up in Afghanistan and Pakistan without adequate screening (and often for bounty payments), and why some of these men may have been in Afghanistan or Pakistan for reasons unconnected with militancy or terrorism (as missionaries or humanitarian aid workers, for example).

The film is based around interviews with former prisoners (Moazzam Begg and Omar Deghayes), lawyers for the prisoners (Clive Stafford Smith, the director of Reprieve, and Tom Wilner, who was Counsel of Record to the Guantánamo prisoners in their cases before the US Supreme Court), and journalist and author Andy Worthington, and also includes appearances from Guantánamo’s former Muslim chaplain James Yee, Shakeel Begg, a London-based Imam, and the British human rights lawyer Gareth Peirce.

Focusing on the stories of three particular prisoners — Shaker Aamer (who is still held) and released prisoners Binyam Mohamed and Omar Deghayes — “Outside the Law: Stories from Guantánamo” provides a powerful rebuke to those who believe that Guantánamo holds “the worst of the worst” and that the Bush administration was justified in responding to the terrorist attacks of September 11, 2001 by holding men neither as prisoners of war, protected by the Geneva Conventions, nor as criminal suspects with habeas corpus rights, but as “illegal enemy combatants” with no rights whatsoever.

The tour, organized by Anna Minkiewicz, a supporter of Andy Worthington’s work and that of Cageprisoners, is backed by Le Monde Diplomatique in Poland, with additional support from Amnesty International Poland, and is intended to raise awareness of the truth about Guantánamo — that very few of the men held are alleged to have had any connection to terrorist actvities, and that the prison’s very existence is an affront to established laws and treaties, and to common notions of fairness and decency.

The organizers also intend the tour to provide the impetus for parliamentarians to recognize that there are, currently, up to 31 men in Guantánamo who have been cleared for release, but who cannot be repatriated because they face a credible risk of torture or other ill-treatment in their home countries, and to press for Poland to join 15 other countries — including Albania, Belgium, Bulgaria, France, Germany, Ireland, Latvia, Portugal, Slovakia, Spain and Switzerland — in offering new homes to some of these men.

We also anticipate that the tour will provide an opportunity for timely discussions about the Polish government’s complicity in the establishment of a secret CIA prison in Poland, following the announcement on January 20 that the “high-value detainee” Abu Zubaydah has been granted “victim” status by the Polish Prosecutor in connection with an ongoing investigation into the prison, at Stare Kiejkuty, near Szymany. This follows the granting of “victim” status to another “high-value detainee,” Abd al-Rahim al-Nashiri, in October last year.

Also showing will be two short animated films by Afghan filmmaker Said Mohsen Hossaini.

Information about the tour is available below.

For further information, or to arrange interviews, please contact Andy Worthington. The contacts in Poland are Anna Minkiewicz, Przemyslaw Wielgosz, the chief editor of the Polish edition of Le Monde Diplomatique and, at Amnesty International, press officer Aleksandra Minkiewicz.

Please note that other speakers are still to be confirmed, and please also note that Moazzam Begg will only be in Poland on February 1 and 2.

Tuesday February 1, 15:00 hrs: Press conference to discuss Guantánamo and the secret CIA prison in Poland with Moazzam Begg, Andy Worthington and Bartlomiej Jankowski.
Kino Muranów, ul. Gen. Andersa 1 (Plac Bankowy, metro “Ratusz”), 00-147, Warszawa.
Subject to final confirmation, Moazzam Begg and Andy Worthington will be joined for the press conference on Tuesday by Bartlomiej Jankowski, the lawyer for Abu Zubaydah. The organizers also hope that Mikołaj Pietrzak, the lawyer for Abd al-Rahim al-Nashiri, and Irmina Pacho of the Helsinki Foundation for Human Rights, which played a major role last summer in exposing flight records demonstrating the movement of prisoners to and from the prison, will also be available to discuss this crucial matter of international significance.

Tuesday February 1, 20:00 hrs: Film screening – “Outside the Law: Stories from Guantánamo,” in association with the Polish edition of Le Monde Diplomatique and Amnesty International Poland.
Followed by Q&A with Moazzam Begg, Andy Worthington, Bartlomiej Jankowski, the lawyer for Abu Zubaydah, and Draginja Nadażdin, director, Amnesty International Poland.
Kino Muranów, ul. Gen. Andersa 1 (Plac Bankowy, metro “Ratusz”), 00-147, Warszawa.
See the website here or email.
Media partner: międzynarodowy kolektyw Globale (Berlin-Montevideo-Warszawa). Please contact Bartek Kurzyca on (48) 515 603 907 or by email.

Wednesday February 2, 18:00 hrs: Film screening – “Outside the Law: Stories from Guantánamo.” Followed by Q&A with Moazzam Begg, Andy Worthington and Wojciech Makowski, Amnesty International Poland.
Kino studyjne „Kinematograf”, Pl. Zwycięstwa 1, Łódź.
Phone: (48) 42 674 0957 (contacts are Anna Michalska or Jakub Sas) or see the website here, and see here for a map.
Media partner: The local branch of Krytyka Polityczna. Please contact: Marek Jedliński.

Thursday February 3, 20:00 hrs: Film screening – “Outside the Law: Stories from Guantánamo.”
Followed by Q&A with Andy Worthington and Draginja Nadażdin, director, Amnesty International Poland.
Kino Rialto, ul. Dąbrowskiego 38, Poznań.
Phone: (48) 61 847 5399 or email Piotr Zakens (also on 600 254 502). Also see the website here.

Friday February 4, 18:00 hrs: Film screening – “Outside the Law: Stories from Guantánamo.” Followed by Q&A with Andy Worthington and ex-MEP Józef Pinior.
Kino Warszawa, ul. Piłsudskiego 64, Wrocław.
Please note that Józef Pinior was a member of the EU commission which investigated EU involvement in rendition and secret prisons.
Phone: (48) 071 342 1246.
Media partner: Kolektyw Falanster. Contact: Aneta Jerska. Also with support from the Odra Film Institution and Amnesty International Wrocław.

Saturday February 5, evening, 20:00 hrs: Film screening – “Outside the Law: Stories from Guantánamo.”
Followed by Q&A with Andy Worthington and Anna Minkiewicz.
Kino Agrafka, ul. Krowoderska 8, Kraków.
See the website here. or phone (48) 12 430 0179 or mobile: 57 123 233.
Media partner: Fundacja Cyrk Edison. Contact: Robert Skrzydlewski.

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, and available on DVD here), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

A former professional footballer, Ahmed Belbacha fled Algeria for the UK in 1999 after receiving death threats from the Groupe Islamique Armé (GIA), which, as Reprieve explained in its submission to the High Court (PDF), “targeted individuals who had served in Algeria’s military (and might again be called up), as well as employees of state-owned enterprises. Mr. Belbacha, who had completed a mandatory term of national service and worked for Sonatrach, the state-owned oil company, fitted both categories.”

Reprieve added that Belbacha “sought for a period to evade the GIA from within Algeria,” but that, “when the threats continued to escalate … he left the country for good,” subsequently settling in the UK, and living for nearly two years in Boscombe in Bournemouth, where, as has been previously reported, and as the Guardian explained, he “worked and studied English,” and, during one Labour Party conference, “was responsible for cleaning the hotel room of the then deputy prime minister, John Prescott,” who left him a tip and a thank-you note.

In the summer of 2001, Belbacha traveled from the UK to Pakistan and then on to Afghanistan,” which he would not have done had he had any militant aims, as his asylum claim was still pending in the UK. After the US-led invasion of Afghanistan in October 2001, he returned to Pakistan, where he was seized. He was then held in a Pakistani prison (where he was abused), before being transferred to US custody, staying in the US prison at Kandahar from December 2001 until approximately February 9, 2002, when he was flown to Guantánamo, where he has been held ever since.

In the court submission, Belbacha’s lawyer, Cori Crider, stated that her client “seeks disclosure from the Secretaries of State tending to show that certain statements he is said to have made during detention were obtained by torture and mistreatment.” She added, “This information is necessary for two purposes: first, to make representations to US executive officials (and in the US courts) against his transfer to Algeria, and second, to have his coerced statements suppressed in the litigation of his substantive habeas claim.”

The torture of Ahmed Belbacha

Crider proceeded to explain how Belbacha was subjected to torture and abuse in US custody in Kandahar and Guantánamo, and how British agents, who interrogated him in both locations, helped to provide information that formed the basis of the false confessions that resulted from the more brutal sessions at the hands of US interrogators:

Mr. Belbacha has on several occasions told me that, during his detention at Kandahar and Guantánamo, he suffered serious mistreatment and was tortured. He alleges that the mistreatment included, among other things, beatings, sleep deprivation, sexual humiliation and abuse, sensory deprivation, exposure to temperature extremes, dietary manipulation and the use of stress positions. [...]

Mr. Belbacha alleges that he was questioned by UK interrogators at Kandahar and Guantánamo during the period of his mistreatment. The interrogators knew of Mr. Belbacha’s employment history in the UK and questioned him about his connection with certain mosques in the UK. [...]

During his interrogations, Mr. Belbacha informs me that he made false statements and confessions as a result of his torture and mistreatment during custody and, in particular, due to his fear that his abuse would otherwise continue. He is unable to specify the precise details of the statements and confessions, as he has been questioned hundreds of times over the past nine years and because the memories are in many instances too painful, but much of his questioning by British officials related to his alleged association with the Finsbury Park mosque in the United Kingdom and how individuals at the mosque had allegedly assisted him in travelling to Afghanistan. Mr. Belbacha’s false confessions obtained under torture are the sole source of a number of allegations made against him.

None of this is surprising, of course, as the array of techniques to which Belbacha was subjected were common, in various permutations, in both Kandahar and Guantánamo, and because it has been established, in court proceedings in the case of Binyam Mohamed, the British resident subjected to “extraordinary rendition” and torture in Pakistan, Morocco and Afghanistan, that the British security services provided information to their US counterparts while he was being held and tortured in Morocco. However, the chain of events is of particular interest in Belbacha’s case, as it suggests that the US interrogators stepped in after their British counterparts had obtained information from him directly, and indicates a very clear example of complicity in torture.

Reprieve’s aim, however, is not primarily to expose this aspect of the British security services’ activities, but, as stated in the lawsuit, to secure information in the possession of the British government to help prevent Belbacha’s forcible repatriation, and also to provide important evidence as part of his ongoing habeas corpus petition in the District Court in Washington D.C., where, since the Supreme Court gave the prisoners constitutionally guaranteed habeas rights in June 2008, 57 cases have been decided, two-thirds of which have been won by the prisoners.

Resisting involuntary repatriation and seeking a new home for Ahmed Belbacha

This information is of great significance because of the particular circumstances in which Belbacha finds himself. Although Reprieve was notified on February 22, 2007 that Belbacha had been cleared for release from Guantánamo after an Administrative Review Board hearing the year before, he was desperate not to return to Algeria, because, as Cori Crider explained, “he fears that he would be mistreated by the Algerian state, having spent nearly a decade in US custody stamped as a would-be terrorist (and having vocally objected to returning to Algeria for many of those years)” and he “also fears retaliation from the contemporary descendant of the GIA — al-Qaeda in the Islamic Maghreb (AQIM) — as he has been an equally vocal critic of the GIA’s attacks on civilians.”

On the former point, Belbacha’s fears appeared to be confirmed last November, when he was “convicted in absentia in Algeria of unspecified charges and sentenced to 20 years’ imprisonment.” Reprieve has been unable to establish the grounds for his conviction, and, as Cori Crider noted in her submission, “The sentence is particularly troubling because no other Algerian in Guantánamo was thus singled out. It appears likely that the sentence reflects a decision by the Algerians to retaliate against Mr. Belbacha, the earliest and most vociferous opponent of repatriation to Algeria from Guantánamo. I am not aware of any diplomatic or political assurances (credible or otherwise) that have been given by the government of Algeria in relation to Mr. Belbacha’s treatment on his return.”

As a result of Belbacha’s credible fears, Reprieve has spent nearly four years trying to secure resettlement for him in a third country. The British government has persistently refused to help, an application for asylum in the US was turned down in 2007, and although the town of Amherst, Massachusetts passed a resolution last year offering him a new home, this cannot happen because of legislation passed by Congress preventing the transfer of any Guantánamo prisoner to the US mainland except to face a trial (and even that last proviso is currently in doubt).

The closest Belbacha came to resettlement in a third country appears to have been in January this year, when representatives from Reprieve, Cageprisoners and the Center for Constitutional Rights traveled around Europe attempting to secure new homes for cleared prisoners who faced the risk — or the probability — of torture in their home countries. Crider noted that “The most advanced of those efforts, which targeted the government of Luxembourg, was apparently blocked by the US State Department,” and explained, in a footnote:

I know this because our efforts with the government of Luxembourg culminated in a meeting, on January 14, 2010, which was attended by myself for Reprieve, Moazzam Begg [for Cageprisoners], the Foreign Minister of Luxembourg, and a member of staff at a partner group, the Center for Constitutional Rights (CCR). The discussion centred on two individuals — Mr. Belbacha and one of CCR’s clients — and during the meeting, Reprieve, with Mr. Begg’s support, proposed Mr. Belbacha as an appropriate candidate for resettlement in Luxembourg. We later learned from a contact in the Luxembourg Foreign Ministry that, as a result of this meeting, Foreign Minister Jean Asselborn had inquired of our client by name of the US authorities. The contact related that the US State Department officials had brushed off this approach, stating that Mr Belbacha “could go back to Algeria.”

This experience led Crider to conclude, as she explained, that “further efforts in this vein will be futile without additional exculpatory information or information that indicates that [Belbacha] will be at risk on return to Algeria. Without this information, the US government is unlikely to be willing to press [his] case for resettlement out of Algeria.”

Problems in the US courts

In seeking to prevent Belbacha’s involuntary return to Algeria, Reprieve has, after initial success, run up against renewed opposition from officials of the Obama administration and various US courts, which affects not only Belbacha but dozens of other prisoners as well. In July 2007, Reprieve asked the District Court in Washington D.C. to prevent Belbacha’s involuntary repatriation, and secured an injunction preventing his removal on June 13, 2008. This, however, only stood until the D.C. Circuit Court became involved, ruling in September 2009, in a case known as Kiyemba II, involving the Uighurs in Guantánamo (Muslims from China who won their habeas petition in October 2008, but feared torture in China) that questions relating to the transfer of prisoners — even when the risk of torture was involved — were solely for the executive branch of government to decide.

The court, out of nowhere, drew on Munaf v. Geren, a case from 2008 in which “two American citizens held in the custody of the United States military in Iraq petitioned for writs of habeas corpus, seeking to enjoin the Government from transferring them to Iraqi custody for criminal prosecution in the Iraqi courts.” In Munaf, the court ruled that “it could not enjoin the Government from transferring the petitioners to Iraqi custody,” because “that concern is to be addressed by the political branches, not the judiciary.”

As a result of the Kiyemba II ruling, which the Supreme Court refused to reconsider in March this year, Belbacha’s injunction was vacated by a District Court judge (in February), and attempts to have it reconsidered were refused. The last straw for Belbacha came in July, when, after protracted court dealings (mostly conducted in secret), the Supreme Court refused to prevent the administration from repatriating any of the six Algerians in Guantánamo at the time, leading to the immediate repatriation of one of these men, Abdul Aziz Naji, who promptly disappeared for a few days, before resurfacing with the threat of a dubious terrorism trial hanging over him.

As Crider noted in her submission, “because there is no injunction in place, the US government may forcibly repatriate Mr. Belbacha at any time.” She also noted that public criticism of the decision to transfer Naji against his will appeared to have paused further transfers, but stressed that the current situation — in which all the government needs to do is assert that it is “government policy not to transfer prisoners to torture” for all judicial inquries to come to an end — is deeply unsatisfactory, and, as a result, Ahmed Belbacha is now seeking to win his habeas corpus petition in the District Court in Washington D.C., and needs the documents in the possession of the British government as an essential part of his defense.

Explaining the importance of his habeas petition, Crider noted, that although “under current Court of Appeals precedent, the judge has no power to order the production of the prisoner in the courtroom; no power to order that the prisoner be released into the United States (or, it would appear, anywhere else); and no power to order the US not to send a petitioner, prevailing or otherwise, anywhere,” and that “The scope of the habeas remedy left to the US judiciary, in other words, is remarkably slim … there remains a category of prisoners that the US has never forced back to a country unwillingly: habeas winners.”

The importance of the British information about Ahmed Belbacha

After running through the poor history of disclosure in the US courts, where “government lawyers litigating the habeas cases have repeatedly claimed that they do not have access to the full set of relevant documents that might be implicated in a habeas action, and that to be required to search all of every relevant agency’s files (the DOD, the CIA, and so forth) for relevant material would be ‘unduly burdensome,’” and where, in the case of Binyam Mohamed, who was demonstrably sent to Morocco to be tortured, “Morocco never once appeared as a detention site on any document … in three separate orders from the district judge in [his] habeas action to the government to disclose all exculpatory information”, Crider’s submission ended with an appeal to the High Court to order disclosure of documents that might help prevent her client’s involuntary repatriation, and I believe this entire passage is worth quoting in its entirety:

A key category of information that is, in my experience, never disclosed is exculpatory information identifiably sourced from a foreign government. So, for example, even had the UK authorities generated reports of their interviews with the Claimants in Afghanistan and in Guantánamo and shared those reports with the US — something UK agents might well do — the US government has not disclosed and would not disclose such foreign-sourced material out of respect for the “control principle” [of not disclosing foreign intelligence sources] that was litigated at length in the English Binyam Mohamed litigation.

It is also, of course, likely that the UK produced internal reports about the situation in Afghanistan or Guantánamo that were never transferred to the US. Those reports, self-evidently, would be unavailable in any habeas disclosure process.

I am aware only of two instances in which exculpatory material originating with a foreign intelligence agency has been disclosed to a petitioner’s lawyer in a Guantánamo case: the case of Binyam Mohamed, and the case of Shaker Aamer. In both cases, the only reason such material was disclosed was as a result of Norwich Pharmacal litigation in England. I am cleared counsel of record in both cases, and have reviewed those disclosures at the Secure Facility in the US [where Guantánamo lawyers must travel to view all classified information]. In both instances, the UK disclosures were, by some margin, the most useful, illuminating, and exculpatory material that I saw in the habeas process.

For these reasons, the information sought is a vital part of having my client’s coerced statements suppressed in their habeas proceedings. I also believe it an essential component of persuading Obama administration officials not to transfer my client to Algeria against his will.

While I cannot know the scope of the information used by the Obama administration to determine whether and under what circumstances to transfer my clients, I do know that my own capacity to make effective representations to them has thus far been very limited. The reasons for this are simple: I have as yet had no information I could use to prove to the administration that my clients’ allegations of coercion, particularly during their early years in US military detention, were true. This, combined with the challenges of producing detailed statements on abuse (or, indeed, on the circumstances of capture) from prisoners who have been in Guantánamo for nearly nine years, has limited me to making fairly general statements: statements to the effect that I believe the clients were abused in custody, that the clients were never implicated in any terrorist act and never joined al-Qaida or the Taliban, and that the clients would pose no threat to anyone upon their release to a safe third country.

It is my view that the representations I could make if I had meaningful exculpatory information about Mr. Belbacha, and about how he was treated in US custody, would be qualitatively different. This, in turn, I believe would make the Obama administration more open to the prospect of resettling him, rather than simply forcing him back to abuse, an unfair trial and/or lengthy imprisonment in Algeria.

The Obama administration has stated, on more than one occasion, that it considers a prisoner’s individualized claim of fear of torture when it decides whether to repatriate a prisoner. In theory, of course, the question of the abuse a prisoner faces in Algeria and his fitness to be released elsewhere are distinct; in practice, however, I believe the lines blur. Proving to the Obama administration that Mr. Belbacha was tortured; that he gave false statements under torture; that, therefore, that allegations lodged against him are unreliable, particularly the most severe ones, is, I believe, an essential part of persuading the government that it would be unjust and inappropriate to return Mr. Belbacha to Algeria.

I wish Reprieve every success in this approach. The Norwich Pharmacal litigation mentioned above, which, in simple lay terms, involves appraisals of how parties (in these cases, the UK government) can become involved in “wrongdoing,” whether intentionally or not, for which a remedy may be sought, was invaluable in the case of Binyam Mohamed, and eventually led to his release. It has not yet had the same end result in Shaker Aamer’s case, although it led, last December, to the release of important documents in the possession of the British government, and it is clear, in the grounds for a judicial review submitted by Cori Crider (PDF), that it should also apply in Ahmed Belbacha’s case. As she explained:

Mr. Belbacha alleges that the Defendants have become involved in the wrongdoing of the US authorities in the following ways. UK officials:

(1) interviewed Mr. Belbacha in circumstances where it was standard practice for detainees to be mistreated prior to interviews to secure their cooperation, thereby facilitating further mistreatment;

(2) interviewed Mr. Belbacha in circumstances where this is likely to have prolonged his detention, in particular at Kandahar;

(3) failed to protest at the mistreatment, torture and/or unlawful detention of Mr. Belbacha, despite no doubt being aware of the circumstances of his detention;

(4) failed to take any or any sufficient steps to secure better treatment for Mr. Belbacha; and

(5) failed to take any or any sufficient steps to secure the release from detention of Mr. Belbacha.

If justice has not entirely vanished, it will lead, as intended, to Ahmed Belbacha winning his habeas petition, and the Obama administration accepting that it will no longer try to forcibly repatriate him, and will, instead, seek a third country prepared to take him.

And if there is any justice left over, that third country will be the UK, where he lived in a peaceful and law-abiding manner for nearly two years, and where there are many people wiling and able to help with his resettlement.

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), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners.

Neither of these developments had been reported prior to the release of the cables by WikiLeaks, and they are therefore extremely significant in establishing how long Bush administration officials were involved in fending off torture investigations overseas, and how eagerly Obama administration officials took up this role.

Suppression of a torture inquiry in Germany

In the first cable, sent to Secretary of State Condoleezza Rice from Berlin on February 6, 2007, by John M. Koenig, the senior career diplomat at the US Embassy in Berlin, following discussions with Rolf Nikel, the deputy national security advisor for Germany, Koenig explained how he emphasized to Nikel that “issuance of international arrest warrants would have a negative impact on our bilateral relationship.” In addition, he “reminded Nikel of the repercussions to US-Italian bilateral relations in the wake of a similar move by Italian authorities last year” (in the case of Abu Omar, discussed below), and “pointed out that our intention was not to threaten Germany, but rather to urge that the German Government weigh carefully at every step of the way the implications for relations with the US.”

What makes this thinly-veiled threat seem particularly harsh is the fact that El-Masri is the clearest case of mistaken identity in the whole of the “War on Terror.” Confused with another man of the same name who had liaised with the 9/11 kidnappers, he was seized in Macedonia as he tried to enter the country on a vacation on New Year’s Eve, 2002, and was then sent to the CIA’s notorious “Salt Pit” prison in Afghanistan, where he was “repeatedly beaten, drugged, and subjected to a strange food regime that he supposed was part of an experiment that his captors were performing on him” (as described by Scott Horton of Harper’s), until the CIA realized it had made a mistake, and reluctantly set him free, dropping him off in Albania and obliging him to make his own way home, and to try to put together the pieces of his shattered life.

Suppression of a torture inquiry in Spain

The second cable, dated April 17, 2009, and sent from Madrid, explained how US officials had manipulated Spanish officials to suppress an investigation into six former Bush administration lawyers — Attorney General Alberto Gonzales, David Addington, former chief of staff and legal adviser to Vice President Dick Cheney, William Haynes, the Pentagon’s former general counsel, Douglas Feith, former undersecretary of defense for policy, Jay Bybee, the former head of the Justice Department’s Office of Legal Counsel, and John Yoo, a former official in the Office of Legal Counsel — for “creating a legal framework that allegedly permitted torture.” A Spanish human rights group had filed the complaint the month before, contending that Spain had a duty to open an investigation under its “universal jurisdiction” law.

The cable reveals how US officials immediately began sounding out Spanish officials, and how, on April 15, an apparently unlikely figure for the Obama administration to embrace — Sen. Mel Martinez (R-Fla.), who had recently been chairman of the Republican Party — attended a meeting between the US embassy’s charge d’affaires and the acting Spanish foreign minister, Angel Lossada, at which the Americans, repeating the same threatening language used in Germany in 2007, “underscored that the prosecutions would not be understood or accepted in the US and would have an enormous impact on the bilateral relationship” between Spain and the United States.

As the cable decribed it, “Lossada responded that the [Spanish government] recognized all of the complications presented by universal jurisdiction, but that the independence of the judiciary and the process must be respected.” However, he added that the government “would use all appropriate legal tools in the matter,” and that, although “it did not have much margin to operate,” would advise the Spanish Attorney General, Cándido Conde-Pumpido, that “the official administration position was that the [government] was ‘not in accord with the National Court.’”

The next day, Attorney General Conde-Pumpido “publicly stated that prosecutors will ‘undoubtedly’ not support [the] criminal complaint,” adding that he would “not support the criminal complaint because it is ‘fraudulent,’ and has been filed as a political statement to attack past [US government] policies.” He added that, “if there is evidence of criminal activity by [US government] officials, then a case should be filed in the United States.” In the cable, officials at the US embassy in Madrid congratulated themselves for their successful involvement in the case, noting that “Conde Pumpido’s public announcement follows outreach to [Spanish government] officials to raise [the US government's] deep concerns on the implications of this case.”

This was not quite the end of the story, as Conde-Pumpido had specifically taken aim at Investigating Judge Baltasar Garzón, “a world-renowned jurist,” who, as David Corn explained in an article for Mother Jones, “had initiated previous prosecutions of war crimes and had publicly said that former President George W. Bush ought to be tried for war crimes.” Garzón pressed ahead with the prosecution in September 2009, but when he ran into domestic problems, triggered by his enthusiasm for investigating war crimes committed under General Franco, the case was assigned to another judge, and the trail has since gone quiet. As David Corn explained, “The Obama administration essentially got what it wanted. The case of the Bush Six went away.”

Supression of torture inquiries in the US — and an unexpected conviction in Italy

As a result of these revelations, it is clear that the US government — under Bush and Obama — has been largely successful in preventing the prosecution of anyone involved in the horrendous human rights abuses initiated in the “War on Terror,” not just abroad, but also in the US. In the last year, fulfilling his “belief that we need to look forward as opposed to looking backwards,” which he expressed in January 2009, the week before he took office, President Obama has presided over the whitewash of a damning internal Justice Department report into John Yoo and Jay S. Bybee (who wrote and approved the notorious “torture memos” of August 2002, which attempted to redefine torture, so that it could be used by the CIA), and has cynically resorted to manipulating the little known and little used “state secrets” privilege to prevent the merest whisper of evidence regarding the torture of foreign prisoners to be discussed in a US court.

One unexpected exception to this global clampdown is Italy, where 22 CIA operatives and a US Air Force Colonel were convicted in absentia, in November 2009, for their part in the kidnapping, in broad daylight in a street in Milan on February 17, 2003 of the cleric Abu Omar, who was then rendered to Egypt, where he was subjected to horrific torture. The US government, of course, refused to allow these operatives to be extradited to Italy to face justice, but the ruling remains a permanent black mark against the Bush administration, which can never be washed away or concealed, and the entire sordid story has recently been covered, in extraordinary detail, by Steve Hendricks in his book, A Kidnapping in Milan: The CIA on Trial.

Trouble ahead in Spain, Germany, Macedonia, Lithuania, Poland and the UK

Moreover, it may be that, despite the success of the US efforts in Germany and Spain, further troubles lie ahead in both countries. In May 2010, Spain picked up where Germany left off regarding the prosecution of the thirteen CIA agents responsible for the torture of Khaled El-Masri, when prosecutors attached to the Audiencia Nacional in Madrid asked a judge to issue an order for the agents’ arrest, and, as Scott Horton also reported at the time, “A criminal proceeding relating to the kidnapping and torture of El-Masri is also underway in Germany.”

In addition, in 2009, as Amrit Singh of the Open Society Justice Initiative explained in a recent article on the Huffington Post, the OSJI filed an application on El-Masri’s behalf against the Macedonian government before the European Court of Human Rights. Singh continued:

In October 2010, the European Court communicated the case to the Macedonian government. This is a significant development, as only about ten percent of all cases brought before the European Court get communicated. Perhaps even more significant is the fact that the European Court has asked the Macedonian government a set of pointed questions, including whether agents of the Macedonian government detained El-Masri and subjected him to torture or cruel inhuman or degrading treatment; whether Macedonian government agents handed him over to a CIA rendition team; whether the Macedonian government was aware that El-Masri faced a real risk of being subjected to torture or cruel inhuman or degrading treatment if transferred to the Salt Pit; and whether Macedonia had conducted an effective official investigation of this case.

In addition, it is possible that further problems — which seem already to have gone beyond the reach of US diplomatic bullying — relate to investigations in Lithuania, Poland and the UK.

As Amnesty International noted in its recent report, “Open secret: Mounting evidence of Europe’s complicity in rendition and secret detention,” Lithuania, whose role as the host of a secret CIA prison in Europe — along with Poland and Romania — was most recently exposed in a United Nations report on secret detention, “has admitted that two secret prisons existed.” Significantly, “The prisons were visited in June 2010 by a delegation from the European Committee for the Prevention of Torture, the first visit by an independent monitoring body to a secret CIA prison in Europe,” and a criminal investigation is ongoing.

Although Romania continues to deny hosting a secret prison, it is implicated in documents issued by Poland’s Border Guard Office in July 2010, which, as I explained in an article at the time, provided, for the first time, “details of the number of prisoners transferred by the CIA to a secret prison in Poland between December 5, 2002 and September 22, 2003, and, in one case, the number of prisoners who were subsequently transferred to a secret CIA prison in Romania.” The revelations led immediately to claims that former Prime Minister Leszek Miller and former President Aleksander Kwasniewski “may face war crime charges for agreeing to host the facility,” and in September, as Amnesty described it, “the prosecutor’s office confirmed that it was investigating claims by Abd al-Rahim al-Nashiri [one of 14 "high-value detainees eventually transferred to Guantánamo, in September 2006], that he was held in secret in Poland.” Moreover, al-Nashiri “was granted ‘victim’ status in October 2010, the first time a rendition victim’s claims have been acknowledged in this context.”

In the UK, British complicity in US torture has been acknowledged, through the deliberations of judges, since August 2008, when two high court judges, Lord Justice Thomas and Mr. Justice Lloyd Jones, found that the British government had been involved in “wrongdoing” in the case of Binyam Mohamed, a British resident who spent over two years being tortured in Pakistan, Morocco and the CIA’s “Dark Prison” in Kabul, before he was sent to Guantánamo. Mohamed was released in February 2009 — in the hope, shared by both the British and the American governments, that his release would shut down any further interest in his case — but in fact Lord Justice Thomas and Mr. Justice Lloyd Jones continued to fight against foreign secretary David Miliband’s refusal to allow them to release a summary of documents provided by the US, relating to Mohamed’s treatment by US agents in Pakistan.

Finally in February this year, 18 months after their initial ruling, the Court of Appeal ordered the documents to be released, and it was finally revealed that the summary described a range of techniques, which, in the judges’ opinion, “could readily be contended to be at the very least cruel, inhuman and degrading treatment by the United States authorities,” including “continuous sleep deprivation,” combined with “threats and inducements,” including the threat of “disappearing.” As the judges also explained, “the stress brought about by these deliberate tactics” was “causing him significant mental stress and suffering,” to the extent that he was being “kept under self-harm observation.”

Although a Metropolitan Police investigation was launched into Mohamed’s allegations, this investigation recently concluded with an announcement that there was insufficient evidence to prosecute the MI5 officer, known as Witness B, “for any criminal offence arising from the interview of Binyam Mohamed in Pakistan on 17 May 2002.”

However, the larger picture of British complicity in torture has refused to go away. Three weeks ago, the British government announced that it had reached a substantial financial settlement with 15 former Guantánamo prisoners — and with one man, Shaker Aamer, who is still held — to staunch the flow of dangerous documents being released as part of a civil claim for damages brought by a number of former prisoners. These had already revealed uncomfortable truths about the complicity in torture of former Prime Minister Tony Blair and former foreign secretary Jack Straw, and although David Cameron, the Prime Minister of the new coalition government, hopes to prevent any further damning revelations emerging, by announcing that a judicial inquiry into British complicity in torture will be held, directed by Sir Peter Gibson, who was previously responsible for overseeing the conduct of the security services, it is by no means certain that the inquiry will be able to halt further revelations, some of which may well involve the US.

It may be that further documents in WikiLeaks’ cache of diplomatic cables deal with the torture problems encountered in the UK since 2008, and with some of the other cases mentioned above, and it is also worth reflecting that, for the foreseeable future, diplomats may find it harder than before to exert pressure to suppress evidence of US torture, having suffered something of a hammer blow to their credibility through the documents released to date.

As a result, this is probably a good time for those in other countries who wish to hold the US government accountable for torture to press ahead with their claims and their cases, and if this is so, then on this point alone WikiLeaks’ disclosures will have been invaluable.

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 the website of the Future of Freedom Foundation, as “Wikileaks: Suppressing the Investigation of Torture.” Cross-posted on The Public Record, The World Cant Wait and Uruknet. Also see the link on the website of the Center for Constitutional Rights.