I’ll discuss the stories of Abd al-Nisr Mohammed Khantumani and Abdul Aziz Naji in a separate article, but for now the focus must be on the legal maneuvering that led to the repatriation of Abdul Aziz Naji, because, for the first time in Guantánamo’s history, a prisoner has been sent home against his will, even though Doris Tennant, one of his lawyers, told the Washington Post two weeks ago that he was “adamantly opposed to going back.” At the weekend, another of his lawyers, Ellen Lubell, told the Miami Herald that Naji “fears extremists will try to recruit him — associating him with Guantánamo — and will torture or kill him if he resists.” She added, “He has nothing against the Algerian government, but he fears that the government will be unable to protect him from Algerian extremists.” In a press release, the Center for Constitutional Rights explained that Naji “fled various forms of persecution in Algeria many years ago, including having been attacked by an extremist.” CCR also sounded a note of caution about how the Algerian government will receive Naji, stating, “we are deeply concerned that he will disappear into secret detention.”

These are valid concerns, as Algeria has a poor human rights record. Amnesty International, Human Rights Watch and the United Nations (PDF, pp. 108-9) regularly express concerns about the use of torture in Algeria, and in its 2009 report on human rights in Algeria, the US State Department noted, “Local human rights lawyers maintained that torture continued to occur in detention facilities, most often against those arrested on ‘security grounds.’”

In contrast, an Obama administration official, speaking anonymously, told the Washington Post two weeks ago, “We take some care in evaluating countries for repatriation. In the case of Algeria, there is an established track record and we have given that a lot of weight. The Algerians have handled this pretty well: You don’t have recidivism and you don’t have torture.” This was a bold statement to make, in light of the allegations made by NGOs and the UN, and concerns about torture or other ill-treatment were not diminished by a response to the news of Naji’s repatriation in Monday’s Washington Post, in which it was noted that “The government said that Algeria has provided diplomatic assurances that Naji would not be mistreated, assurances that administration officials say are credible because 10 other detainees have been returned to Algeria without incident.”

The problems with this statement concern the “diplomatic assurances,” and the claim that 10 men have been repatriated “without incident.” On the “diplomatic assurances,” Human Rights Watch explained in a press release that its own research “has shown that diplomatic assurances provided by receiving countries, which are legally unenforceable, do not provide an effective safeguard against torture and ill-treatment,” and, on the status of the 10 men returned, although there have been no allegations of torture, there has been very little information at all about the conditions in which they have been held, and what has emerged publicly is not reassuring, as it reveals both prolonged pre-trial detention, and calls for punitive sentences from the prosecutors. As I explained in January this year:

[F]rustratingly little is known about the eight Algerians repatriated from Guantánamo between July 2008 and January 2009, although one indication of how the Algerian justice system deals with returned Guantánamo prisoners was provided in November 2009, when the BBC reported that, 15 months after two of these men were repatriated, they had been acquitted after a trial in which the prosecutor had called for prison sentences of 20 years.

Alarmingly, despite Abdul Aziz Naji’s fear of being repatriated — and the fears of five other Algerians, as revealed by the Washington Post two weeks ago — his release was not only supported by the Obama administration, but also by the Supreme Court.

Judge Gladys Kessler takes on the D.C. Circuit Court – and the Supreme Court

The spur for a legal battle that has largely been taking place without the mainstream media paying much attention — and with an alarming reliance on secrecy — was a principled stand taken by Judge Gladys Kessler, of the District Court in Washington D.C., who, single-handedly, has been attempting to uphold the United States’ obligation, under the UN Convention Against Torture, not to “expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”

In November, Judge Kessler granted the habeas corpus petition of Farhi Saeed bin Mohammed, a 49-year old Algerian, after concluding that the government’s supposed evidence relied almost entirely on unreliable confessions produced by Binyam Mohamed, a British resident who was subjected to torture in Pakistan, Morocco and at the CIA’s “Dark Prison” in Kabul from April 2002 to May 2004.

Six months after Judge Kessler delivered her ruling, with bin Mohammed still not released, his lawyers asked her “to order the government to carry out his release, but to bar his transfer to Algeria, where he fears persecution or even death from either the Algerian government or from armed terrorist groups there,” as SCOTUSblog described it. As a result of two depressing rulings in the Court of Appeals in Washington D.C. Circuit Court (the District Court), judges are not actually able to order the release of prisoners who have won their habeas petitions, and are not even supposed to interfere with the disposition of prisoners, whose fate, according to the Circuit Court, is entirely dependent on the whims of the Executive branch. Judge Kessler, however, was undeterred.

On June 3, she issued a temporary order barring bin Mohammed’s transfer to Algeria, and on June 10 mounted a stout defense of his right not to be forcibly repatriated, noting (PDF):

Petitioner has voiced great fear about being transferred to Algeria. He has not lived in Algeria for more than 20 years, and has no ties to that country. Because he has been designated an “enemy combatant,” he greatly fears retribution by the Algerian authorities and that he will be formally charged under the Algerian Penal Code, tortured, convicted, and very possibly executed by the Algerian Government. He has claimed that he will be caught between the Algerian Government, which will brand him as an international terrorist, and armed domestic terrorists, who oppose the existing government, often pressure individuals to join their ranks, and retaliate violently when such individuals refuse. Petitioner has made clear that he would rather suffer continued confinement in Guantánamo Bay than be placed in the control of the Algerian Government.

In response to a brief filed by the government, Judge Kessler complained that two declarations submitted, which purported to guarantee bin Mohammed’s humane treatment if returned to Algeria, “appear to be boilerplate statements which have been filed in a number of the Government’s Oppositions to Motions,” and that a third, written by Daniel Fried, President Obama’s Special Envoy on Guantánamo, “was submitted ex parte so that [bin Mohammed] has not had an opportunity to read it.” After noting that bin Mohammed’s fears “are of great concern,” and that it is “essential” that assurances received from the Algerian government, purporting to guarantee that bin Mohammed will receive “humane treatment,” are “tested,” Judge Kessler ordered Fried to appear in person in her court, explaining, “Given the centrality of those representations and assurances to the future of [bin Mohammed] and possibly to his very life, this Court has an obligation to ensure that there is real substance behind the conclusory phrases contained in Special Envoy Fried’s declarations.”

Fried never turned up, of course, because the Justice Department immediately filed an appeal with the Circuit Court, which then ordered Judge Kessler to “resolve all outstanding motions” in the case with reference to Munaf v. Geren and Kiyemba v. Obama (aka Kiyemba II), the cases that the Circuit Court had drawn on (Munaf) and issued (Kiyemba II) to demonstrate that only the Executive branch was entitled to make decisions about where to send Guantánamo prisoners. As SCOTUSblog noted, “While the order did not say that Kessler could not hold a hearing on Mohammed’s plea not to be sent to Algeria, it specified that the judge was to rule on that issue ‘without requiring testimony from Special Envoy Fried or any other United States government official,’” which, of course, “completely undercut the purpose that Kessler had” for calling the hearing in the first place.

The Circuit Court then issued an amended ruling, instructing Judge Kessler to decide the Mohammed plea “in an order from which a party can take an immediate appeal,” and as SCOTUSblog noted in response to this instruction:

The Circuit Court thus had taken over, in a significant way, the further proceedings in Kessler’s Court, and has sent her the strongest hint that she risked being overturned if she barred his transfer anew. Since it noted the binding nature of the precedents she was to observe, the Circuit Court clearly was signaling that, if it accepted the government’s view that Mohammed’s case was no different, Kessler would be found to be without authority to prevent his transfer to Algeria.

After this, the struggle between Judge Kessler and the Circuit Court was swamped in secrecy. At a hearing convened by Kessler on June 28, all the documentation was sealed, but SCOTUSblog was able to deduce, from a subsequent appeal filed by the government, that she had once more barred bin Mohammed’s transfer to Algeria. On July 8, however, in another secret hearing, the Circuit Court “summarily overturned” Judge Kessler’s ban, prompting SCOTUSblog to note that the court’s order “continues a seldom-interrupted string of rulings by the Circuit Court against detainees challenging their confinement or transfer,” which “contrasts with a majority of rulings by District Court judges upholding detainees’ challenges under federal habeas law.”

The final blow for bin Mohammed — and for those who, like Judge Kessler, had quaintly presumed that the “non-refoulement” requirement of the UN Convention Against Torture might actually mean something to the judiciary and the Executive branch — came last Friday, when, by 5 votes to 3, the Supreme Court sided with the Circuit Court. As SCOTUSblog noted, the ruling was “the first indication that the Supreme Court will not allow federal judges to interfere with government controls on who leaves or stays at Guantánamo Bay.”

Although three of the justices — Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor — dissented, noting that they “would grant the stay to afford the Court time to consider, in the ordinary course, important questions raised in this case and not resolved in Munaf v. Geren,” just a few hours later the Supreme Court unanimously approved the forced repatriation of Abdul Aziz Naji.

This was a bleak day for US justice, not only because it involved the Supreme Court blithely disregarding the UN Convention Against Torture’s “non-refoulement” obligation, joining in an unholy trinity with the D.C. Circuit Court and the Obama administration, but also because it brings to an abrupt, cruel, and — I believe — illegal conclusion a struggle to release prisoners without violating the UN Convention Against Torture, which, for the most part, was actually respected by the Bush administration.

The Bush administration’s record on not returning prisoners to torture

The long history of the authorities grappling with the “non-refoulement” obligation at Guantánamo began with the Uighurs, 22 Muslims from China’s oppressed Xinjiang province, who were mostly seized in Pakistan in December 2001 after crossing from Afghanistan, where they had been living in a run-down settlement in the Tora Bora mountains, thwarted in their attempts to travel to Turkey or Europe in search of work, or nursing futile hopes of rising up against their only enemy, the Chinese government.

With the Uighurs, the Bush administration recognized its “non-refoulement” obligation, refusing to return them to China, and finding new homes for five of the men in Albania in 2006. When the Obama administration inherited the problem of the remaining 17 men, who had, in the meantime, won their habeas corpus petitions, it found new homes for 12 of them in Bermuda, Palau and Switzerland, although five still remain at Guantánamo, and, last spring, the administration turned down a plan by White House Counsel Greg Craig to bring some of the men to live in the US, which would have done more in the long run to defuse scaremongering about Guantánamo than any other gesture.

Despite the Bush administration locating some principles when it came to the Uighurs, in other cases prisoners had to fight in the courts to prevent their forcible repatriation to countries where they faced the risk of torture. In 2007, a Libyan, Abdul Rauf al-Qassim, sought the intervention of the courts to prevent his return to Libya, and after two Tunisians were repatriated in June 2007 — and were subsequently mistreated and given jail sentences (of three and seven years) after show trials — a judge intervened to prevent the repatriation of a third, Mohammed Abdul Rahman (also known as Lotfi bin Ali), and, by extension, other Tunisians in Guantánamo.

In other cases, like that of Ahmed Belbacha, an Algerian who had lived in the UK, lawyers successfully sought injunctions preventing their return, and by the time Obama came to power, it was generally understood that prisoners were not be involuntarily returned to China, Egypt, Libya, Syria, Tunisia or Uzbekistan. As a result, in the last year, the Obama administration has resettled prisoners from Egypt, Libya, Syria, Tunisia and Uzbekistan in Albania, Belgium, Bulgaria, Georgia, Ireland, Portugal, Slovakia and Switzerland. Algeria was more problematical, as was demonstrated by the cases of the men who had returned voluntarily, even though there was, to be honest, no guarantee that they would be treated humanely, and my constant analogy was that return to Algeria was like Russian Roulette.

How the Circuit Court defended expansive executive power

However, all this came to an end with the Circuit Court’s intervention in the Uighurs’ case — firstly, in February 2009 (in Kiyemba v. Obama, aka Kiyemba I), when a panel of judges ruled that the courts could not order the resettlement in the US of prisoners who had won their habeas petitions but could not be repatriated, because only the Executive branch could decide matters relating to immigration. As I explained in a review of the ruling:

The judges were seemingly unmoved that this would leave the Uighurs (and, very possibly, others in Guantánamo) with no means of leaving the prison, and that it stripped the Supreme Court’s ruling in June 2008, granting the prisoners habeas corpus rights, of all practical meaning, if it was not possible for judges to order their release. In the judges’ words, however, “the political branches have the exclusive power … to decide which aliens may, and which aliens may not, enter the United States, and on what terms.”

The second blow came last September (in another Kiyemba v. Obama case, identified as Kiyemba II), after the Uighurs’ lawyers asked the Court of Appeals to reconsider its opinion en banc (in other words, with all the judges ruling, instead of just a panel of three), and also sought assurances that the courts would be able to act if the government proposed sending their clients to countries where they faced the risk of torture. However, as I explained at the time:

[N]ot only did the court refuse to reconsider its ruling, but the judges also refused the Uighurs’ request for the court’s assistance “to prevent their transfer to a country where they are likely to be subjected to further detention or to torture,”, drawing 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, although “The Court held the district court had jurisdiction over the petitions,” it also 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.”

It is this narrow reading of Munaf that has particularly enraged those opposed to the Circuit Court’s resolute endorsement of executive power — and which at least caused some consternation last Friday to Justices Ginsburg, Breyer and Sotomayor. Essentially, though, the Circuit Court’s ruling in Kiyemba II dictates what happens to prisoners like Abdul Aziz Naji — and, presumably, Farhi Saeed bin Mohammed — when the administration tires of trying to find new homes for them, and decides to subject them involuntarily to the Russian Roulette repatriation package that Abdul Aziz Naji received this week.

Although government officials told the Washington Post on Monday that they “will nonetheless continue to examine each case individually before any repatriation,” noting that some officials “have expressed some concern about returning one of the Algerians [Ahmed Belbacha] who was sentenced to 20 years in prison in absentia” last year, for what his lawyers think was the crime of speaking out about his fears of repatriation, there now appears to be no obstacle to prevent the Obama administration from sending the other four Algerians home whenever it feels like it.

To discover that such shameless disregard for the UN Convention Against Torture has come not only from the Supreme Court, but also from the man who promised to close Guantánamo (but then failed to do so), and who also promised to uphold the absolute ban on torture (while refusing to prosecute anyone who authorized its use in the previous eight years), is depressing news indeed.

Note: With these releases, 178 prisoners remain at Guantánamo. One of these men, Ali Hamza al-Bahlul, is serving a life sentence in solitary confinement, after a one-sided trial by Military Commission in October 2008, in which he refused to mount a defense. Another prisoner, Ahmed Khalfan Ghailani, is in prison in New York, awaiting a federal court trial that was recently approved. 594 prisoners have been released (or, in some cases, transferred to the custody of their home governments, or of other governments), and six men died, five in mysterious circumstances.

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

As published exclusively on Cageprisoners. Cross-posted on The Smirking Chimp, The Public Record and New Left Project.

See the following for articles about the 142 prisoners released from Guantánamo from June 2007 to January 2009, and the 60 prisoners released from February 2009 to mid-July 2010, whose stories are covered in more detail than is available anywhere else –- either in print or on the Internet –- although many of them, of course, are also covered in The Guantánamo Files: June 2007 –- 2 Tunisians, 4 Yemenis (here, here and here); July 2007 –- 16 Saudis; August 2007 –- 1 Bahraini, 5 Afghans; September 2007 –- 16 Saudis; September 2007 –- 1 Mauritanian; September 2007 –- 1 Libyan, 1 Yemeni, 6 Afghans; November 2007 –- 3 Jordanians, 8 Afghans; November 2007 –- 14 Saudis; December 2007 –- 2 Sudanese; December 2007 –- 13 Afghans (here and here); December 2007 –- 3 British residents; December 2007 –- 10 Saudis; May 2008 –- 3 Sudanese, 1 Moroccan, 5 Afghans (here, here and here); July 2008 –- 2 Algerians; July 2008 –- 1 Qatari, 1 United Arab Emirati, 1 Afghan; August 2008 –- 2 Algerians; September 2008 –- 1 Pakistani, 2 Afghans (here and here); September 2008 –- 1 Sudanese, 1 Algerian; November 2008 –- 1 Kazakh, 1 Somali, 1 Tajik; November 2008 –- 2 Algerians; November 2008 –- 1 Yemeni (Salim Hamdan) repatriated to serve out the last month of his sentence; December 2008 –- 3 Bosnian Algerians; January 2009 –- 1 Afghan, 1 Algerian, 4 Iraqis; ; February 2009 — 1 British resident (Binyam Mohamed); May 2009 — 1 Bosnian Algerian (Lakhdar Boumediene); June 2009 — 1 Chadian (Mohammed El-Gharani), 4 Uighurs to Bermuda, 1 Iraqi, 3 Saudis (here and here); August 2009 — 1 Afghan (Mohamed Jawad), 2 Syrians to Portugal; September 2009 — 1 Yemeni, 2 Uzbeks to Ireland (here and here); October 2009 — 1 Kuwaiti, 1 prisoner of undisclosed nationality to Belgium; October 2009 — 6 Uighurs to Palau; November 2009 — 1 Bosnian Algerian to France, 1 unidentified Palestinian to Hungary, 2 Tunisians to Italian custody; December 2009 — 1 Kuwaiti (Fouad al-Rabiah); December 2009 — 2 Somalis, 4 Afghans, 6 Yemenis; January 2010 — 2 Algerians, 1 Uzbek to Switzerland, 1 Egyptian, 1 Azerbaijani and 1 Tunisian to Slovakia; February 2010 — 1 Egyptian, 1 Libyan, 1 Tunisian to Albania, 1 Palestinian to Spain; March 2010 — 1 Libyan, 2 unidentified prisoners to Georgia, 2 Uighurs to Switzerland; May 2010 — 1 Syrian to Bulgaria, 1 Yemeni to Spain; July 2010 — 1 Yemeni (Mohammed Hassan Odaini).

Reprieve’s analysis is certainly accurate, given 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 “he cannot now be the judge whether his own work was effective.”

Reprieve identified three particular reasons why Gibson’s recusal is required. The first is because it appears that, in a recent interview with Andrew Neil, the Prime Minister admitted that Gibson had “already conducted a secret inquiry, at the previous government’s request, into allegations of misconduct,” but “because it is secret, none of us may know what his conclusions were.”

The second reason is because, in three annual reports (from 2006 to 2008), Gibson concluded that all members of the Security Services were “trustworthy, conscientious and dependable.” As a result, in Reprieve’s words, he was “entirely prejudging the issues before the inquiry.” Reprieve also contrasted Gibson’s analysis with that of Lord Neuberger, the Master of the Rolls, in February this year, when, in ordering the government to release US documents establishing that British resident Binyam Mohamed had been tortured while in custody in Pakistan in 2002, he asserted that MI5 did not respect human rights, had not renounced participation in “coercive interrogation” techniques, deliberately misled MPs and peers on the intelligence and security committee, which is supposed to be able to scrutinize its activities, and had a “culture of suppression” in its dealings with [former foreign secretary David] Miliband and the court.”

The third reason, as Reprieve explained, is that “part of Sir Peter’s job, as ISC, was to oversee ministerial authorizations that would allow the Security Services to violate the law abroad, including sanctioning British involvement in abusive interrogations. Since evidence will be presented that such interrogations have continued during Sir Peter’s tenure, he either validated these actions, or he has been hoodwinked as ISC. Either way, he should be a witness at the inquiry.”

This is a pretty devastating analysis of Sir Peter Gibson’s unsuitably for the job, although Reprieve’s press conference today to announce its very public and very vocal opposition to his appointment drew only a bland response from Downing Street, where a spokesman “said that the Prime Minister had full confidence in Gibson.”

In his letter, Clive Stafford Smith asked Gibson:

Please could you explain how you are able to preside over an inquiry about British complicity in torture during the time period in which you were responsible for the statutory oversight of the security and intelligence services? The allegation that you will have to rule on is (with apologies for putting it so frankly) that you were either asleep on your watch or were hoodwinked. Out of fairness to victims of torture, the security services and yourself, do you believe that you can rule fairly on such issues?

At today’s press conference he reiterated his complaints, stating, as the Guardian explained, that there was a “patently obvious basis for a judge to remove himself,” and adding that, given Gibson’s evident conflict of interest, the request for his recusal was “an incredibly uncontentious issue.”

Adding that he had not “received the first whisper of a response” from the Prime Minister regarding his complaints, Stafford Smith then threw down a gauntlet to the government, stating, “If they refuse to discuss this in private, then we will spend the rest of the summer discussing it in public.”

He also confirmed that Reprieve “would look at its legal options if Sir Peter refused to step down,” as the Guardian explained, and stated:

Welcome though the torture inquiry is, the current structure is a sham. Sir Peter Gibson was perhaps the least appropriate judge to evaluate the security services. The government must get serious about learning the mistakes of the past, rather than try to cover them up, or we are in for a long, hot summer.

Bring it on, Clive! Let’s have a proper inquiry under the Inquiries Act of 2005, with a judge able to “balance the need for national security against the need for transparency,” as Reprieve requested two weeks ago — and if David Cameron refuses, let’s rally some support for a long hot summer of protest. As I explained last week, when a series of damning documents regarding British complicity in torture were released by the High Court, in connection with an ongoing civil claim for damages filed by six former Guantánamo prisoners:

The time for silence, and the time for secrecy are over. To clear the air, and to draw a line under this most lamentable period in our recent history, we need an inquiry presided over by someone who is able to “balance the need for national security against the need for transparency.” For too long now — and with baleful results — the need for national security has been allowed to override everything else, inflicting grave damage on our claims to be a civilized country, and leading to devastating effects for those caught up in a “War on Terror” with few checks and balances.

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.

Cross-posted on Cageprisoners, Uruknet and Aletho News.

These reveal, shockingly, how the Labour government was happy for British nationals and residents seized in Afghanistan and Pakistan to be rendered to Guantánamo by the Bush administration, and how, in one case — that of Martin Mubanga, seized in Zambia — Tony Blair’s office intervened to prevent attempts by the Foreign and Commonwealth Office to have him returned to the UK, leading to his imprisonment in Guantánamo for two years and nine months.

In paving the way for its announced inquiry into British complicity in torture, the coalition government attempted, without success, to persuade the High Court that, as the Guardian put it, “proceedings should be delayed while attempts at mediation are made” before the inquiry begins. Critics had already expressed their fears that the calls for “mediation” were a smokescreen for compensation deals that would attempt to buy the former prisoners’ silence, so that the inquiry could proceed in secret without too many embarrassments.

Instead, however, the government’s intervention has precipitously kick-started the inquiry in a very public manner, after Tim Otty QC, counsel for five of the men, said that proceedings “should be allowed to continue because the documents that the government is beginning to disclose shed new light upon the role that the UK authorities played in the men’s mistreatment,” and the judge, Mr. Justice Silber, agreed.

One of the most shocking documents disclosed in the High Court proceedings was issued by the FCO on January 10, 2002, the day before Guantánamo opened. Entitled, “Afghanistan UK Detainees,” it described the government’s “preferred options” in dealing with British prisoners. “Transfer of United Kingdom nationals held to a United States base in Guantánamo is the best way to meet our counter-terrorism objectives, to ensure they are securely held,” the document explained, adding that the “only alternative” was to either hold these men in British custody in Afghanistan, or to return them to the UK.

In another shocking revelation, it was revealed that, in the case of Martin Mubanga, released documents “raise a number of troubling questions as to the role of the former Prime Minister’s office in frustrating the release of one of the claimants,” as Tim Otty described it, adding, “In the period of March and April 2002, the Prime Minister’s office apparently countermanded a desire on the part of the Foreign and Commonwealth Office to intervene on behalf on Mr. Mubanga.”

Mubanga, a joint British-Zambian national, had traveled from Pakistan to Zambia, where his sister lived, in February 2002, but had then been seized by the Zambian security services, and according to the documents released in court, the Prime Minister’s Office had intervened to ensure that he was not brought back to the UK. As a result, the FCO was put in a difficult position: if officials sought consular access, thereby acknowledging British responsibility for him, he would have been released to the UK authorities, directly contradicting the Prime Minister’s orders, which, as Reprieve noted yesterday, involved the Prime Minister “order[ing] the FCO to violate its international law obligations under the Vienna Convention, which requires the UK to provide consular assistance to British nationals around the world.”

At the time, an FCO document complained about “the schizophrenic way in which policy on this whole case was handled in London,” which had led to the British High Commission in Lusaka being placed “in an impossible position,” and in an email dated August 22, 2002, an FCO official, recognizing that “we broke our policy” because of direct interference from Tony Blair’s office, stated, “we are going to be open to charges of concealed extradition.”

According to Mubanga, after the British finished with him — apparently having tried and failed to recruit him as a spy — the US agent who had been dealing with him told him, “I’m sorry to have to tell you this, as I think you’re a decent guy, but in ten or 15 minutes we’re going to the airport and they’re taking you to Guantánamo Bay.”

In court, Tim Otty highlighted Tony Blair’s complicity in torture by pointing out that, by the spring of 2002, it was abundantly clear that there was a considerable risk that terror suspects in US control would be subjected to rendition and torture. “Despite that,” he told the court, “someone at Number 10 saw fit to counter what the Foreign Office wished to do.”

As the Guardian also explained yesterday, this was “not the only time the Prime Minister’s Office intervened to thwart attempts by Foreign Office officials to obtain a degree of protection for British citizens.” Minutes prepared for the Home Office Terrorism and Protection Unit after a meeting in April 2002 state that the US authorities “had been informed that the British government might begin making public requests for legal access to British men held at Guantánamo.” According to the minutes, “FCO had wanted to do this (and wanted to be seen to be doing it) but had been overruled by No. 10.”

The released documents also highlight the leading role played by Jack Straw, then the foreign secretary, in shaping the policies that led to the interrogations of British prisoners in US custody in Afghanistan, prior to their transfer to Guantánamo. As the Guardian explained, in mid-January 2002, Straw sent a telegram to several British diplomatic missions around the world in which he “signaled his agreement” with the Guantánamo policy, “but made clear that he did not wish to see the British nationals moved from Afghanistan before they could be interrogated.” In the telegram, he wrote:

A specialist team is currently in Afghanistan seeking to interview any detainees with a UK connection to obtain information on their terrorist activities and connections. We therefore hope that all those detainees they wish to interview will remain in Afghanistan and will not be among the first groups to be transferred to Guantánamo. A week’s delay should suffice. UK nationals should be transferred as soon as possible thereafter.

One of these “detainees” was Shaker Aamer, the last British resident still held in Guantánamo, and as a court heard in December last year, leading to the launch of a Metropolitan Police investigation, Mr. Aamer has claimed that British agents were present in the room, in the US prison at Kandahar airbase in Afghanistan, when he was subjected to abusive treatment by Americans.

Other interrogations revealed in the documents include those involving Omar Deghayes, seized from a house in Lahore in May 2002, who was treated disdainfully by the British agents who visited him, and an unidentified prisoner held in Kabul, under the heading, “Warriors 14/1,” about whom the agents involved noted only, “Interview conditions: cold beaten up.”

Extraordinarily, these documents are only the tip of a very murky iceberg, and it is unclear at present how many more will be publicly revealed. As has been previously reported, the government has identified up to 500,000 documents that may be relevant to the former prisoners’ claim for damages, and, according to the Guardian, “says it has deployed 60 lawyers to scrutinize them, a process that it suggests could take until the end of the decade.” In this first batch, “just 900 papers have been disclosed, and these have included batches of press cuttings and copies of government reports that were published several years ago,” but as they also include these damning insights into the activities of Tony Blair, Jack Straw and the agents who interrogated British prisoners in appalling conditions, it is surely inconceivable that the government will now be able to conduct a secret inquiry into British complicity in torture, and must, instead, order a full and open inquiry.

This could take place under the Inquiries Act of 2005, like the Baha Mousa inquiry (into the murder, in British custody, of a hotel clerk in Iraq), which, as Reprieve noted when David Cameron announced the torture inquiry two weeks ago, was held under the Act and has been “a model of an inquiry functioning efficiently, including the hearing of secret evidence,” and has also allowed for document classification review proceedings that “are sophisticated and rightly allow the judge to balance the need for national security against the need for transparency.”

The time for silence, and the time for secrecy are over. To clear the air, and to draw a line under this most lamentable period in our recent history, we need an inquiry presided over by someone who is able to “balance the need for national security against the need for transparency.” For too long now — and with baleful results — the need for national security has been allowed to override everything else, inflicting grave damage on our claims to be a civilized country, and leading to devastating effects for those caught up in a “War on Terror” with few checks and balances.

Note: To see the released documents in full, please visit the website of Reprieve, the London-based legal action charity whose lawyers represent dozens of current and former Guantánamo prisoners. The documents have also been made available by the Guardian. Please also note that, as well as Martin Mubanga and Omar Deghayes, the former prisoners involved in the civil claim are Binyam Mohamed, Bisher al-Rawi, Jamil El-Banna and Richard Belmar.

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 on the Huffington Post, Antiwar.com and CounterPunch. Cross-posted on Cageprisoners, The Public Record, Eurasia Review, Uruknet, Op-Ed News, Indymedia, The Smirking Chimp, Aletho News and Star Talk FM.

These concern the scope of the inquiry, its transparency (or lack of it), how the issue of compensation for the victims of British involvement will be played by the government, whether the inquiry involves a thinly-veiled attempt to gag the courts, which have been openly critical of British involvement in torture, and, perhaps most crucially, whether the inquiry will lead to a genuine renunciation by the government and the security services of any further involvement with torture, which, lest we forget, is not only illegal, but also counter-productive, morally corrosive, and fundamentally unreliable.

First, the good news: After years of obstruction and obfuscation by the Labour government, almost any kind of inquiry would be welcome. However, as Ian Cobain explained in yesterday’s Guardian, although “Leading figures within both parties of the coalition had concluded that an inquiry was inevitable because of the noxious position they had inherited,” without bold action by foreign secretary William Hague, Deputy Prime Minister Nick Clegg and Prime Minister David Cameron, there would either have been no inquiry at all, or something so perfunctory that it would have been both insulting and inadequate.

It was Hague — critical of the Labour government as shadow foreign secretary, but never quite calling for an inquiry — who got the ball rolling, in the following exchange on the BBC, which took place shortly after the General Election, when he was asked about an inquiry:

Hague: We have said again in the coalition agreement that we want a judge-led inquiry.
BBC: So will there be an inquiry of some form?
Hague: Yes, both parties in the coalition said they wanted that. Now what we’re working on is what form that should take.

According to Ian Cobain, Hague’s remarks “came out of the blue”. He added, “The intelligence agencies and senior figures in the Cabinet Office were stunned. They had no idea that Hague was about to make such an announcement.”

In a frantic “rearguard action,” senior officials in the security services, noting that the foreign secretary had not committed the government to a judicial inquiry, tried to ensure that a political figure rather than a judge — “someone more malleable,” in Cobain’s words — would be appointed to head the inquiry.

The government then consulted senior figures in the judiciary and legal experts in academia, in an attempt to work out what form the inquiry should take. According to Cobain, David Cameron was reportedly committed to an inquiry, and “had been minded to appoint a judge to lead it,” but just a few weeks ago, following talks with senior figures in the Cabinet Office who are closely connected to the security services, “he experienced what one observer called ‘a wobble.’” His sources advised 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.”

It was presumably as a result of the “wobble” that, two weeks ago, a source in the Foreign and Commonwealth Office briefed journalists that the inquiry “would examine only one case — that of Binyam Mohamed — and that Cameron had already concluded that the country’s intelligence agencies were guilty only of errors of omission, not commission.”

The source also explained that the plan, at the time, was that “the allegations would be examined briefly, and in secret, by a commission sitting over the summer.” According to Ian Cobain, it was at this point that Nick Clegg weighed in, persuading the Prime Minister that “such a commission would be seen as a whitewash, one that would do nothing to end the mounting litigation,” leading to the announcement on Tuesday that there would be a judicial inquiry, and that it would be led by Sir Peter Gibson, a former appeal court judge who monitors the activities of the intelligence agencies, 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.

The scope of the inquiry: problems with secrecy and transparency

On the scope of the inquiry, David Cameron signaled that it would be thorough, allowing the victims and their representatives to give evidence during open sessions, as well as representatives of human rights groups. In the House of Commons, he explained that he had asked 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.”

Nevertheless, the scope of the inquiry is 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 Tuesday evening, 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 last June, 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 are 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.”

This provoked a sharp response from Reprieve, the legal action charity whose lawyers represent dozens of Guantánamo prisoners. In a statement, Reprieve explained:

The scourge of the last government was the fact that they tried to cover up all the facts relating to torture complicity cases. In particular, the Binyam Mohamed litigation revolved around the government claiming public interest immunity in materials which were simply embarrassing. Now, the Prime Minister is saying that much of this inquiry will be held in secret. The only way in which public confidence is going to be restored in the intelligence services is if the public is able to see this inquiry functioning properly.

Reprieve also took exception to other elements of secrecy surrounding the plans, noting that it appeared that the judge would see all the relevant documents, but that the Prime Minister would decide what will be made public. “[W]e will only see what the government wants us to see,” Reprieve stated, adding, “This was the problem with the last government, and as long as politicians are making these decisions the national embarrassment/ national security problem will remain.”

In its most significant complaint, Reprieve asked why the inquiry will not be held under the Inquiries Act of 2005, noting that the Baha Mousa inquiry (into the murder, in British custody, of a hotel clerk in Iraq) was held under the Act and has been “a model of an inquiry functioning efficiently, including the hearing of secret evidence.” 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.”

Questions of compensation – and the urgent need for Shaker Aamer to be returned from Guantánamo

Two of the most pressing questions in the wake of David Cameron’s announcement concern the timing of the inquiry, and the question of compensation for the victims. In the House of Commons, David Cameron complained that the security services were “paralysed by paperwork,” primarily relating to a civil claim for damages filed by six former Guantánamo prisoners, and ongoing investigations by the Metropolitan Police into the conduct of intelligence officers in the cases of Binyam Mohamed, Shaker Aamer, and a third man who has not been publicly identified, but who may well be Rangzieb Ahmed, the British citizen, reportedly tortured in Pakistan, who has just been given leave to appeal his conviction in December 2008, in a trial in which all mention of his alleged torture was excluded.

Announcing the inquiry, David Cameron stated that it would not begin “until civil claims have been resolved through mediation or settled with compensation,” as the Guardian explained, and until the Metropolitan Police investigations had concluded.

Although he expressed his hope that the inquiry would start before the end of the year, and would conclude its investigations with 12 months, there are two fundamental problems with this scenario. The first, as identified by Reprieve, is the possibility that, if the civil claims are to be settled by the end of the year, “this will mean that the claimants will be paid off and that no disclosure [or] documents will come out of those cases. This, together with a secret inquiry, will mean that information will never reach the public.”

Or, as former prisoner Omar Deghayes explained to the Daily Mail:

It feels a little bit like blackmail in a way. They want us to keep quiet and shut up … If you listen to David Cameron’s speech in its entirety, it seems that a condition of us accepting the compensation will be that we drop the civil cases and then keep quiet about everything … This is not a compensation issue. I must stress that we did not begin civil proceedings to get a bit of money, we did it to raise awareness and try and stop the same thing happening again. It is not acceptable that we be required to keep quiet and not talk about torture again.

The second problem is that, according to David Cameron’s plan, the Metropolitan Police are supposed to conclude their investigation into Shaker Aamer’s claims of torture while Mr. Aamer himself remains held in Guantánamo. This is completely unacceptable — not only because the physical presence of Mr. Aamer (who was cleared for release by the US authorities in 2007, but is still mysteriously held) is essential for the police inquiry, but also because it is inconceivable that any of the cleared prisoners will agree to cooperate with the government at all while he remains in Guantánamo.  As a result, the very first thing that David Cameron, Nick Clegg and William Hague need to do is to secure Shaker Aamer’s return.

Gagging the courts?

Allied to the general problem of secrecy is the government’s approach to the courts, which, of course, have done so much to expose complicity in torture, and to exert exactly the kind of pressure that has led to this inquiry in the first place. Primarily, this pressure has emerged in the case of Binyam Mohamed, when, for 18 months, former foreign secretary David Miliband fought to prevent two high court judges from revealing a summary of documents relating to Mohamed’s torture in Pakistan that had been provided to the British security services by the CIA. Miliband argued that doing so would imperil the intelligence-sharing relationship between the US and the UK, although the High Court judges disagreed, as did the Court of Appeal when, in February this year, they finally ordered David Miliband to release the summary, which demonstrated that MI5 knew that Mohamed had been subjected to treatment “at the very least cruel, inhuman, and degrading.”

David Cameron was evidently acutely conscious of this in the House of Commons on Tuesday, when he told his fellow MPs that, next year, the government will “publish a green paper which will set out our initial proposals for how intelligence is treated in the full range of judicial proceedings, including addressing the concerns of our allies”. At the heart of the plans for the green paper is an attempt to make sure that, in future, there will be no more opportunities for judges to order the release of information provided by foreign intelligence services (whether the US or anyone else), although another obvious motivation is the cost of legal proceedings. It is surely no coincidence that, in the civil damages claim brought against the government by six former prisoners, a high court judge had set a deadline of this Friday for MI5 and MI6 to provide a list of 250,000 documents relevant to the case.

Whether through a desire to cut costs, or as seems more probable, through a desire to prevent the courts from delivering the kind of condemnation of the security services’ activities that came from Lord Neuberger in February, in Binyam Mohamed’s case, when he stated that MI5 did not respect human rights, had not renounced participation in “coercive interrogation” techniques, deliberately misled MPs and peers on the intelligence and security committee, and had a “culture of suppression” in its dealings with Miliband and the court, the government‘s proposal for a green paper cannot, in all reality, be seen as anything other than a cynical attempt to shield future wrongdoers from judicial scrutiny. As Reprieve explained, “There is already ample opportunity — much increased recently — for evidence to be heard in secret. There is no need to expand this dangerous practice.”

Renouncing torture, or leaving loopholes open?

On the final point — the renunciation of torture — the government is also on thin ice. It is all very well for David Cameron to state that what is at stake is the UK’s reputation “as a country that believes in human rights, justice, fairness and the rule of law,” but grave concerns remain about the guidelines issued to the security services. This long-running saga, triggered by questions surrounding what advice had been given to a British operative known only as “Witness B” for his interrogation of Binyam Mohamed in Pakistan in May 2002, was revived last June, when the Guardian reported that, in January 2002, MI5 and MI6 officers in Afghanistan were told they could not be “party” to torture and must not “be seen to condone it,” but that because prisoners were “not within our custody or control, the law does not require you to intervene to prevent this.”

Following the Abu Ghraib scandal in April 2004, the guidelines were rewritten, but although Prime Minister Gordon Brown stated in March 2009 that these guidelines would be released, he left office without doing so. On Tuesday, just before the new government’s torture inquiry was announced, attempts by Reprieve to launch a judicial review of the guidelines were quashed after the government stepped in at the last minute with a claim that new guidelines would be published “very shortly,” just after Mr. Justice Collins had stated that, if the allegations about how British agents interrogated prisoners held overseas were true, they “indicated that there may well have been complicity in acts of torture.”

The new guidelines were published on Tuesday, at the same time that the inquiry was announced, but, as Reprieve noted, two troubling points remain unanswered. The first concerns the fact that “the previous policy has not been published,” which “suggests that there is something within it to be hidden.” Reprieve added, “The judge will see that, but will we? Will we know whether unlawful acts carried out in the past were authorised by that policy [or] guidance?”

The second point, more worryingly, concerns the new guidance. As the Guardian explained, there is “concern that the government’s new interrogation guidelines … contain[] a number of loopholes that could still lead to it being used to facilitate torture,” or, as Reprieve put it, the new policy still ”allows ministers to authorise torture.” The key to this, as the Daily Mail explained in an analysis of the new guidelines, is that, although the guidelines state unambiguously that “In no circumstance will UK personnel ever take action amounting to torture or cruel, inhuman or degrading treatment or punishment,” the perception of such treatment “will cover a wide spectrum of conduct and different considerations and legal principles may apply depending on the circumstances and facts of each case,” and that the final approval for what may be regarded as “torture or cruel, inhuman or degrading treatment or punishment” rests with government ministers, who must be “consulted.”

As Reprieve noted, “This is illegal under the Convention Against Torture. Was this clause also in the previous guidance? If so then ministers must be held accountable for allegations of complicity in torture.”

In conclusion, then, the announcement of the inquiry is welcome, but issues of secrecy, compensation, the need for the release of Shaker Aamer and the seeming inability of the government — any government — to prohibit torture without leaving loopholes open, look likely to dog the inquiry’s every move. While the government is to be congratulated, ministers also need to be careful, as many people are scrutinizing their every move, and will not settle for anything that resembles a whitewash.

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

As published exclusively on Cageprisoners. Cross-posted on Eurasia Review.

Despite the ostrich-like maneuvering of America’s allies, several significant watchdogs refused to let these crimes remain hidden. In Europe, for example, Dick Marty, a Swiss senator and a member of the Parliamentary Assembly of the Council of Europe, led an investigation into secret detention and rendition involving Council of Europe member states, and published two damning reports in June 2006 and June 2007, in which he concluded that there was “now enough evidence to state that secret detention facilities run by the CIA [existed] in Europe from 2003 to 2005, in particular in Poland and Romania,” and that “All the members and partners of NATO signed up to the same permissive — not to say illegal — terms that allowed CIA operations to permeate throughout the European continent and beyond.”

In February this year, the UN published a report, the “Joint Study on Global Practices in Relation to Secret Detention in the Context of Counter-Terrorism,” which was prepared by Martin Scheinin, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Manfred Nowak, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the Working Group on arbitrary detention, and the Working Group on enforced or involuntary disappearances. The report concluded that at least 40 countries, including the UK, Germany, Canada, Australia and Italy, were “complicit in the secret detention” of prisoners seized in the “War on Terror.”

Exposing British complicity in torture in the UK courts

In the UK, questions about the security services’ complicity in torture hit the courts in the summer of 2008, in relation to Binyam Mohamed, a British resident seized in Pakistan in April 2002 and subsequently rendered to Morocco by the CIA, where, as he told his lawyer Clive Stafford Smith, the director of the legal action charity Reprieve, he was tortured for 18 months, before being rendered to the “Dark Prison” in Afghanistan, a secret CIA prison, and the US prison at Bagram airbase. He arrived in Guantánamo in September 2004.

In the summer of 2008, triggered by the British government’s refusal to release 42 documents in its possession relating to Mohamed’s treatment in Pakistan by US agents, his lawyers secured a judicial review, in which the judges — Lord Justice Thomas and Mr. Justice Lloyd Jones — concluded that the British government had become involved in “wrongdoing” committed by the United States. The judges explained that Mohamed’s detention in Pakistan from April to July 2002, when a British agent visited him, was “unlawful” under Pakistani law, because he “was being detained by the United States incommunicado and without access to a lawyer.” They were also highly critical of the fact that the British intelligence services “provided further information to the United States and further questions to be asked of BM [Mohamed]” for nine months after the visit in May 2002, even though he “was still incommunicado and they must also have appreciated that he was not in a United States facility and that the facility in which he was being detained was that of a foreign government (other than Afghanistan).”

The judges ordered the government to allow Mohamed’s lawyers to have access to the 42 documents, but their attempts to publish their own summary of the documents, describing what US agents did to Mohamed in Pakistan, was blocked by the foreign secretary David Miliband, who argued that publication of the summary would threaten the intelligence sharing relationship between the US and the UK.

This impasse, which involved several more hearings over an 18-month period, was only finally broken in February this year, when the Court of Appeal ordered the government to release the summary, revealing that Mohamed had been subjected to a program of carefully monitored sleep deprivation that resembled aspects of the torture program being developed at that time for use on the alleged “high-value detainee” Abu Zubaydah, who was seized in Pakistan 12 days before Mohamed.

In the meantime, the Metropolitan Police began investigating claims that the security services had been complicit in the torture of Binyam Mohamed, and although Mohamed was released from Guantánamo in February 2009, the pressure on the government continued when seven former Guantánamo prisoners (including Mohamed) launched a civil claim for damages, suing MI5, MI6, the Foreign Office, the Home Office and the Attorney General on the basis that agents of the security services were involved in unlawful acts and conspiracy, and that they were involved in, or failed to stop, their detention and ill-treatment (and in some cases, their “extraordinary rendition” to secret prisons).

By December, the ongoing litigation also included Shaker Aamer, the last British resident still held in Guantánamo, whose lawyers sought the release of documents demonstrating that British agents were present in the room when he was subjected to torture in US custody in Kandahar, Afghanistan before his transfer to Guantánamo. In February this year, the Metropolitan Police announced that their investigation into the alleged complicity of the security services in torture had been expanded to include Shaker Aamer, and that they were also investigating a third case involving MI6 and another possible torture victim, who was not identified.

More British complicity in torture exposed: in Pakistan and six other countries

While all these cases involved cooperation with the United States, other troubling revelations indicated that the British government was unilaterally involved in dubious practices involving torture in other countries. From April 2008 onwards, Ian Cobain of the Guardian has steadily exposed a number of cases involving the torture of British citizens — primarily in Pakistan, but also in Bangladesh, Egypt and the United Arab Emirates — which have demonstrated British involvement in torture abroad, and have involved specific requests for particular men to be seized, questions to be asked during interrogations, and, on occasion, the presence of British agents in person (although never during actual torture sessions). A detailed article summarizing Cobain’s findings was published in the Guardian in July 2009 (although there have been other developments since), and a Human Rights Watch report, “Cruel Britannia,” was published in November. In addition, in April 2009, Cageprisoners published “Fabricating Terrorism II” (PDF), which added Jordan, Kenya and Syria to the list of countries in which the British security services had been involved in the detention and dubious interrogation of suspects.

In response to the steady leak of damaging information, the Conservative MP David Davis forcefully exposed British complicity in torture in the House of Commons last July, drawing attention to the case of Rangzieb Ahmed, a British citizen seized in Pakistan with British help, and then subjected to torture, which including having his fingernails ripped out. Ahmed was then returned to the UK, where he was convicted of terrorist offences in a trial in which all mention of his torture was prohibited (although he has just been given leave to appeal). Compared to this intervention, the steady complaints of shadow foreign secretary William Hague were less spectacular, but he repeatedly called for an investigation, and on May 20 this year, less than three weeks after the General Election, he followed up on his complaints, announcing that there would be a judge-led inquiry into British complicity in torture.

On Tuesday, the Guardian reported that David Cameron and William Hague were “understood to have agreed the terms of a judge-led inquiry,” that it is “likely to be held in private,” and that it is “expected to offer compensation” in some cases. Quite how the inquiry will proceed has yet to be established. The Guardian noted that, after Hague’s initial announcement, “his remarks appeared to unsettle the intelligence services and required further discussion” in the PM’s new National Security Council. The Guardian also added, worryingly:

There were reports at the weekend, sourced to the Foreign Office, suggesting that the inquiry would examine only one case — that of Binyam Mohamed — and that Cameron had already concluded that the country’s intelligence agencies were guilty only of errors of omission, not commission.

New report by Human Rights Watch

While the debate continues over the scope of the coalition government’s inquiry, Human Rights Watch issued a new report, “‘No Questions Asked’: Intelligence Cooperation with Countries that Torture,” defining the key elements in questions of complicity in torture as they relate not only to the activities of the British government, but also to Germany and France, and stating, unambiguously:

France, Germany and the United Kingdom — pillars of the European Union and important allies in the fight against terrorism — demonstrate, through policy statements and practice, a willingness (even eagerness) to cooperate with foreign intelligence services in countries like Uzbekistan and Pakistan — notorious for abusive practices, both in general and against terrorism suspects in particular. They then use foreign torture information for intelligence and policing purposes … and, in some cases … [i]nformation tainted by torture abroad can end up as part of legal proceedings.

The report reveals how the absolute ban on torture — enshrined in the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (in force since 1987) — has been, and continues to be circumvented in all three countries, primarily through a “No Questions Asked” policy regarding how the information was extracted.

At the core of these deliberately careful approaches to the use of information derived from torture is the question of what constitutes complicity in torture, and the report’s authors cite two influential sources to demonstrate that the governments involved have crossed a line. Martin Scheinin, the UN Special Rapporteur on the promotion and protection of human rights while countering terrorism, has stated that:

[R]eliance on information from torture in another country, even if the information is obtained only for operational purposes, inevitably implies the “recognition of lawfulness” of such practices and therefore triggers the application of principles of State responsibility. Hence, States that receive information obtained through torture or inhuman and degrading treatment are complicit in the commission of internationally wrongful acts. Such involvement is also irreconcilable with the obligation erga omnes of States to cooperate in the eradication of torture (PDF, para. 55).

In addition, during an examination of the definition of complicity in torture abroad (para. 42), the UK Parliament’s Joint Human Rights Committee (JCHR) decided that:

Systematic, regular receipt of information obtained under torture is … capable of amounting to “aid or assistance” in maintaining the situation created by other States’ serious breaches of the peremptory norm prohibiting torture … [T]he practice creates a market for the information produced by torture. As such, it encourages States which systematically torture to continue to do so.

The JCHR concluded that a “general practice of passively receiving intelligence information which has or may have been obtained under torture” is likely to give rise to state responsibility for complicity in torture.

The countries involved deny these claims, of course. The UK, which, like Germany and France, is a signatory to the UN Convention Against Torture, and, in December 2003, was one of the first countries to ratify the Optional Protocol to the Convention against Torture, which “creates an international system to monitor places of detention worldwide, and a parallel domestic monitoring system in each country that ratifies it,” has been “engaged in an active campaign to encourage worldwide ratification and implementation” of the Optional protocol, but, at the same time, has “pursued a series of counter-terrorism policies that undermine the absolute prohibition on torture and ill-treatment.”

The problem with Memoranda of Understanding

Human Rights Watch opened its criticism of the British government by focusing on a policy relating to domestic terror suspects since the 9/11 attacks. The men in question — around a dozen, initially, from countries including Algeria and Jordan — were seized in the months following the attacks, and held without charge or trial in Belmarsh maximum-security prison until the Law Lords ruled, in December 2004, that such imprisonment — resembling the arbitrary detention in Guantánamo — was illegal. They were then released under strict bail conditions, akin to house arrest, and in recent years, as Cageprisoners explained in depth in a report entitled, “Detention Immorality” (PDF), they and dozens of other men — including British nationals — have been imprisoned again, pending deportation, or held under house arrest on control orders or deportation bail.

However, while the US government set up Guantánamo as an illegal interrogation camp, the British government had no interest in interrogating any of these men, who have never been questioned at all, and was, instead, determined to deport them to their home countries, circumventing the UN Convention Against Torture’s prohibition on returning foreign nationals to countries where there are “substantial grounds for believing that [they] would be in danger of being subjected to torture,” through Memoranda of Understanding.

These are agreements between the British government and the men’s home governments, in which such unlikely figures as Colonel Muammar Gaddafi, Libya’s dictator, claimed that they would treat the men humanely if they were returned. The project has not been entirely successful, as judges intervened to prevent any Libyans from being returned, having concluded that the MoU was untrustworthy, and attempts to deport men to Jordan and to Algeria (which has not even deigned to sign an official MoU), although approved by the Law Lords in February 2009, are currently on appeal to the European Court of Human Rights.

In its criticism of the UK government’s attempts to rely on MoUs instead of prosecuting terror suspects in the UK, Human Rights Watch concluded that the government “has attempted to change European human rights jurisprudence banning returns to the risk of torture and ill-treatment by introducing a balancing test between the alleged threat to national security posed by an individual and the risk of ill-treatment upon return.”

Hidden guidelines and mistaken beliefs

In a further demonstration of its disregard for the UN Convention Against Torture, the British government has cooperated closely with the governments of countries that are regularly implicated in torture practices — primarily Pakistan, but also others, as outlined above. The report explains how the government “staunchly defends the use of information that may have been obtained through torture,” and “has argued for the right to use torture evidence in legal proceedings,” and has thereby “championed a minimalist, and ultimately mistaken interpretation of the Convention against Torture.” The report also notes that, in its most recent review of the UK, the UN Committee Against Torture criticized the government (para. 4(b)) for its “limited acceptance of the applicability of the Convention to the actions of its forces abroad.”

In seeking to understand the extent of British involvement in torture abroad, campaigners are stymied by the government’s refusal to release the guidelines issued to the security services. In June 2009, the Guardian reported that, in January 2002, MI5 and MI6 officers in Afghanistan were told they could not be “party” to torture and must not “be seen to condone it,” but that because prisoners were “not within our custody or control, the law does not require you to intervene to prevent this.”

Following the Abu Ghraib scandal in April 2004, the guidelines were rewritten, but although Prime Minister Gordon Brown stated in March 2009 that these guidelines would be released, he left office without doing so. In a sign that the new government may be less open than it has suggested, attempts by Reprieve to launch a judicial review of the guidelines were quashed on Tuesday after the government stepped in at the last minute with a claim that new guidelines would be published “very shortly,” just after Mr. Justice Collins had stated that, if the allegations about how British agents interrogated prisoners held overseas were true, they “indicated that there may well have been complicity in acts of torture.”

Despite this, what is known all too clearly is that the British government has stated openly that it has no problem accepting information derived from torture in an operational sense, even though such information is inherently unreliable (and its use contributes to a tolerance, if not an encouragement, of the use of torture by other countries). The report cites a strategy document, “CONTEST II,” which explicitly states that foreign intelligence services, “rarely volunteer the circumstances” in which prisoners are held, but even “[i]f it is established that material has been obtained from a detainee by torture,” it “may still be used to investigate and to stop terrorist attacks,” although it “would not be admissible in criminal or civil legal proceedings in the UK.”

Moreover, as I explained in an article last April, the Foreign and Commonwealth Office (FCO) essentially reprised this argument in its 2008 annual report on human rights, issued in March 2009 (PDF, p. 15). After stating, “The use of intelligence possibly derived through torture presents a very real dilemma, given our unreserved condemnation of torture and our efforts to eradicate it,” the report’s authors concluded, “Where there is intelligence that bears on threats to life, we cannot reject it out of hand.”

In its 2009 human rights report, issued in March this year (PDF, p. 48), the FCO maintains its dangerously conflicted approach. After stating that “we must work with intelligence and security services overseas,” the report adds, “Some of them share our standards and laws while others do not. But we cannot afford the luxury of only dealing with those that do. The intelligence we get from others saves British lives.” The FCO also moves from a defense of the passive acceptance of torture-derived information to one in which it attempts to defend its cooperation with the torture regimes of Pakistan and elsewhere:

Whether sharing information [with foreign intelligence and security agencies], which might lead to the detention of people who could pose a threat to our national security, passing questions to be put to detainees, or participating in interviews of them, we do all we can to minimize, and where possible, avoid the risk that the people in question are mistreated by those holding them. However, there are times when we cannot reduce the risk to zero … Ultimately it is for Ministers to balance the risk of mistreatment against the national security needs and make a judgment.

This prompted Human Rights Watch to state that “[t]he complicity of UK agents in individual cases of abuse sends a damaging message to Pakistan that torture is acceptable in the context of interrogating terrorism suspects,” adding that, without attempts to “make genuine enquiries about the circumstances in which detainees are interrogated,” it also “sends a clear message to the authorities in Pakistan that the UK is indifferent about the torture of terrorism suspects in its custody.”

The Law Lords on thin ice

In seeking to justify its passive receipt — and its active solicitation — of torture-derived information, and its assertion that such material may be used operationally, the government appears to have taken comfort from the Law Lords, in a ruling in 2005 (A and Others vs. Secretary of State for the Home Department), in which Lord Nicholls of Birkenhead, representing the majority view, claimed, “It is one thing for tainted information to be used by the executive when making operational decisions or by the police when exercising their investigatory powers, including powers of arrest,” but maintained that it was not appropriate for such information to be used in judicial proceedings, stating that, in a courtroom, “repugnance to torture demands that proof of facts should be found in more acceptable sources than information extracted by torture.”

The problem with the ruling — beyond the Lords’ inability to realize that they had failed to ensure that the use of torture is prevented at all times — lay with the notion that “the passive receipt and use of intelligence from countries with poor records on torture” is in any way acceptable. Human Rights Watch noted that both the JCHR and the House of Commons Foreign Affairs Committee disagreed. The committees focused in particular on claims made by Craig Murray, the former ambassador to Uzbekistan, who has stated (para. 14) that, when he informed his superiors that “the UK routinely and knowingly accepted information obtained under torture by Uzbek security services,” the chief legal advisor in the Foreign and Commonwealth Office “assured him that the Convention against Torture did not prohibit the receipt of information obtained under torture.”

The JCHR found that the “systematic receipt” of information derived, or probably derived from torture was “tantamount to complicity in torture and creates a market for torture,” and the FAC stated (PDF) that the use of “evidence which may have been obtained under torture on a regular basis, especially where it is not clear that protestations about mistreatment have elicited any change in behaviour by foreign intelligence services, could be construed as complicity in such behaviour.” Human Rights Watch agreed, stating that “uncritical use of such material breaches the UK’s duty to take positive steps to prevent torture wherever and by whomever committed,” and that it “may amount to complicity in torture.”

Moreover, Human Rights Watch explained that, although the ruling in A and Others was supposed to have “definitively affirmed the prohibition on the use of torture evidence in British judicial proceedings,” overturning a shocking ruling in the Court of Appeal in 2004, in which judges ruled that torture evidence could be used provided that the UK had “neither procured nor connived at” the torture, in reality it is all but impossible for torture-derived information to be challenged.

The majority of the Lords in A and Others thought they had compelled the government to exclude evidence when it is established “by means of such diligent inquiries into the sources that it is practicable to carry out and on a balance of probabilities” that it was obtained under torture, but as Human Rights Watch noted, it succeeded only in shifting the burden of proof onto the accused, setting “what may be an impossible standard to meet given the difficulties in ascertaining the precise circumstances in which intelligence information was obtained.”

Moreover, in the court where this material is used — SIAC, the Special Immigration Appeals Commission — matters relating to the proposed deportation of foreign terror suspects are conducted in closed sessions, with the accused represented by special advocates who are prohibited from discussing anything with their clients. This ludicrous and unjust situation prompted Lord Bingham, in a dissenting opinion, to note, “it is inconsistent with the most rudimentary notions of fairness to blindfold a man and then impose a standard which only the sighted could hope to meet.”

In the second part of this article, I will focus on Human Rights Watch’s analysis of how both Germany and France employ their own devious methods to use information derived through the use of torture. These are generally less well-known than the British story, but no less disturbing. As for the UK, Human Rights Watch recommends that the Intelligence and Security Committee (ISC), which examines the budget, administration and policy of the security services, needs replacing with a body that has genuine power, because, at present, “the security services and the responsible ministers (the Foreign Secretary in the case of MI6 and Home Secretary in the case of MI5) can refuse to provide to the ISC sensitive information … and information supplied by another government if that government does not consent.”

Human Rights Watch therefore concludes that what is required is “an independent, public judicial inquiry into all cases in which there are allegations of British government complicity, participation or knowledge of torture or cruel, inhuman or degrading treatment of detainees.” This is certainly what is required, and we can only hope that David Cameron was not letting a particularly cynical cat out of the bag by concluding, before an inquiry has even started, that the intelligence agencies “were guilty only of errors of omission, not commission.”

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

As published exclusively on Cageprisoners. Cross-posted on Eurasia Review, The Smirking Chimp, United Progressives and The Public Record.

For an archive of articles about Binyam Mohamed, see here, and for an archive of articles about Britain’s anti-terror laws, see here.

As UN Secretary-General Kofi Annan explained on June 26, 1998 (when the day was first marked), “This is a day on which we pay our respects to those who have endured the unimaginable. This is an occasion for the world to speak up against the unspeakable. It is long overdue that a day be dedicated to remembering and supporting the many victims and survivors of torture around the world.”

At the time, Kofi Annan lamented that, although over 100 States had ratified the Convention, the use of torture was “still reported” in many of those countries. Nevertheless, for the US and other supposed civilized countries, the creation of the International Day came at a time when, in general, the involvement of Western nations in torture was minimal.

The threat posed by Osama bin Laden had not yet manifested itself in the African embassy bombings of 1998, the attack on the USS Cole in 2000, and, finally, the attacks on the US mainland on September 11, 2001, which prompted the Bush administration to actively embrace torture. Within a year of the attacks, the President had secured memos purporting to redefine torture, prepared by lawyers in the Justice Department’s Office of Legal Counsel, which was supposed to provide the Executive branch with impartial legal advice.

President Clinton and “extraordinary rendition”

In retrospect, however, the Clinton administration had begun to pave the way for the torture regime that was developed in response to the 9/11 attacks by allowing — or tacitly encouraging — the CIA to become involved in a program of “extraordinary rendition” as early as 1995. Building on a long tradition of kidnapping foreign nationals and bringing them to the US to face justice (the original version of “rendition”), the “extraordinary rendition” program did away with the US courts, and allowed the CIA to kidnap terror suspects in various countries, and to dispose of them by sending them to Egypt.

The first known “extraordinary rendition” took place in September 1995, when Tal’at Fu’ad Qassim, also known as Abu Talal al-Qasimi, a purported Egyptian militant who had been living in exile in Denmark, was seized in Croatia by US forces and, reportedly, questioned aboard a US navy vessel and handed over to Egypt “in the middle of the Adriatic Sea.” He was executed in 2000.

Disturbingly, the plan to seize the next five targets of the “extraordinary rendition” program began on June 25, 1998 (the day before the first International Day in Support of Victims of Torture), when, as the Wall Street Journal explained in 2001, the Egyptian government “issued a prearranged arrest warrant” for Shawki Salama Attiya, who apparently “produce[d] fake visas and other bogus documents” for a cell of Egyptian Islamic Jihad members in Albania. That same day, Albanian police, with the co-operation of the CIA, seized Attiya. “Several days later,” the report continued, “he was taken, handcuffed and blindfolded, to [an] abandoned air base, north of Tirana,” and flown to Egypt, arriving on July 2, 1998. Over the next month, four other members of the alleged cell were kidnapped and flown to Egypt. Attiya later received a life sentence, while two others were hanged, and two others received 10-year sentences. In a bleak postscript, Egyptian Islamic Jihad (which, by this point, was intimately tied to the activities of al-Qaeda through the figure of Ayman al-Zawahiri) responded to the “extraordinary renditions” by vowing vengeance, and the bombings of the US embassies in Nairobi and Dar-es-Salaam, which killed 223 people and wounded over 4,000 others, took place on August 7, 1998.

Although President Clinton’s program, which apparently involved no more than 14 renditions, was tightly controlled and included a strict paper trail and a requirement that convictions in Egypt had already been obtained (however unreliable those convictions may have been), the program provided a ready-made template for the Bush administration.

Torture today

Twelve years after the original International Day in Support of Victims of Torture, the landscape has changed profoundly. Seizing on the “extraordinary rendition” program, the Bush administration involved other countries, including Jordan, Morocco and Syria, and established its own secret prisons in countries including Thailand, Poland, Romania and Lithuania, as well as indulging in the industrial-scale rendition of prisoners to Guantánamo. It has left in its wake malignant policies, whose effects have proven difficult to undo, not only at Guantánamo, but also at Bagram in Afghanistan.

This is in spite of the fact that, on his second day in office, President Obama issued an executive order upholding the absolute ban on torture. However, although this purported to mark a clean break with the Bush administration, its impact has been undermined by the refusal of President Obama — or of his Attorney General, Eric Holder — to order a thorough, independent investigation into the Bush administration’s torture program. This reluctance to address the crimes committed by the previous administration was signaled before Obama took office, when he explained his “belief that we need to look forward as opposed to looking backwards.”

The impact of President Obama’s torture ban has also been damaged by persistent allegations of torture in a secret prison at Bagram, and by the President’s inability to meet his self-imposed deadline of January 22, 2010 for the closure of Guantánamo, where, as critics rightly point out, the open-ended nature of detention is itself a form of abuse. Although the prisoners have had access to lawyers since 2004, and have been able to lodge habeas corpus petitions since June 2008, the underlying situation is not markedly different from how it was in October 2003, when, in a break with protocol, Christophe Girod of the International Committee of the Red Cross told the New York Times, “The open-endedness of the situation and its impact on the mental health of the population has become a major problem.”

Revelations of torture since President Obama took office

The Obama administration’s refusal to open an official investigation into its predecessor’s record has allowed admissions of torture to fester, unaddressed or cynically ignored, in almost every policy area relating to the detention of “War on Terror” prisoners. Just before Obama took office, for example, Susan Crawford, a close friend of Vice President Dick Cheney and a retired judge who served as the convening authority for the military commission trial system at Guantánamo, admitted that she had refused to press charges against Mohammed al-Qahtani, a Saudi prisoner subjected to a brutal program of “enhanced interrogation” in late 2002 and early 2003, because, as she stated bluntly in an interview with Bob Woodward, “We tortured Qahtani. His treatment met the legal definition of torture.”

Mohammed al-Qahtani was not the only prisoner at Guantánamo who was subjected to torture. According to an official who spoke to the New York Times for an article published in January 2005, as many as 1 in 6 of the prisoners held were subjected to “enhanced interrogation techniques.”

Moreover, in the last year and a half, President Obama’s inaction has been regularly challenged, in reports on the treatment in secret CIA prisons of 14 “high-value detainees” transferred to Guantánamo in September 2006, and in reports of the torture of other prisoners. These have surfaced in the District Court in Washington D.C., where judges have been delivering rulings on the prisoners’ habeas corpus petitions, and to date, have found for the prisoners in 36 out of 50 cases.

In April 2009, a confidential ICRC report on the 14 “high-value detainees,” delivered to the US government in 2007, was leaked to the New York Review of Books (PDF). The report, based on interviews with the 14 men at Guantánamo, described how they had been treated in the CIA’s secret prisons, and the men’s statements were so disturbing that the ICRC concluded:

The allegations of ill-treatment of the detainees indicate that, in many cases, the ill-treatment to which they were subjected while held in the CIA program, either singly or in combination, constituted torture. In addition, many other elements of the ill-treatment, either singly or in combination, constituted cruel, inhuman or degrading treatment.

That same month, there was further bad news for Bush administration officials. In response to a court order, the Obama administration released four “torture memos,” written in August 2002 and May 2005 by lawyers in the Justice Department’s Office of Legal Counsel (John Yoo, Jay S. Bybee and Stephen Bradbury), which demonstrated a disturbing predilection for twisting the torture statute out of all recognizable shape in an attempt to redefine torture, so that it could be used by the CIA.

This was followed by an unclassified version of a damning 231-page Senate Armed Services Committee investigation into detainee abuse (PDF), which, although it managed to avoid the use of the word torture, nevertheless concluded that “senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.” Those held responsible included President George W. Bush, defense secretary Donald Rumsfeld, Vice President Dick Cheney’s legal counsel (and later chief of staff) David Addington, Pentagon general counsel William J. Haynes II, Gen. Richard Myers, the Chairman of the Joint Chiefs of Staff, White House general counsel (and later Attorney General) Alberto Gonzales, Guantánamo commanders Maj. Gen. Michael Dunlavey and Maj. Gen. Geoffrey Miller, and Lt. Gen. Ricardo Sanchez, the commander of coalition forces in Iraq.

Revelations of torture in the Guantánamo prisoners’ habeas petitions

In addition, other references to torture have steadily seeped out of the District Court in Washington D.C., in the judges’ rulings on the Guantánamo prisoners’ habeas corpus petitions. The first concerned Mohamed Jawad, an Afghan teenager seized after a grenade attack in Kabul in December 2002, who had been put forward for a trial by military commission under President Bush. In Jawad’s case, the government ignored the fact that Army Col. Stephen Henley, the military judge in his proposed trial by military commission, had ruled on two separate occasions in October and November 2008 that the crux of the government’s case against him — two “confessions” made on the day of his capture, the first in Afghan custody, and the second, just hours later, in US custody — were inadmissible because they had been obtained through treatment that constituted torture.

Without these confessions, the government essentially had no case, but the Justice Department persisted in pursuing his case before Judge Ellen Segal Huvelle, who granted Jawad’s habeas petition last July after repeatedly stressing that the government did not have a single reliable witness, and that the case was “lousy,” “in trouble,” “unbelievable,” and “riddled with holes.”

In September, Judge Colleen Kollar-Kotelly granted the habeas petition of Fouad al-Rabiah, a Kuwaiti prisoner, after discovering that his confessions about meeting Osama bin Laden and distributing supplies in Afghanistan’s Tora Bora mountains, during a showdown between al-Qaeda and US forces in December 2001, were completely false, and had been conjured up by al-Rabiah after he was subjected to prolonged sleep deprivation and other “enhanced interrogation techniques.”

In November, Judge Kollar-Kotelly granted the habeas petition of Farhi Saeed bin Mohammed, an Algerian, after she concluded that crucial elements of the government’s supposed evidence were unreliable, because they came from statements made by the British resident Binyam Mohamed, shortly after his arrival at Bagram in May 2004. Judge Kollar-Kotelly ruled that Mohamed’s statements were unreliable because, after he was seized in Pakistan in April 2002, he was sent by the CIA to Morocco, where he was reportedly tortured for 18 months, and was then held for another four months in the CIA’s notorious “Dark Prison” near Kabul.

To establish the unreliability of Mohamed’s evidence. Judge Kollar-Kotelly devoted much of her unclassified opinion to a harrowing analysis of his treatment, noting, in particular, that “The government does not challenge or deny the accuracy of Binyam Mohamed’s story of brutal treatment,” and reminding senior officials that the UN Convention Against Torture “requires that governments which are party to it ‘ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.’”

The month after the bin Mohammed ruling, Judge Ricardo Urbina granted the habeas petition of Saeed Hatim, a Yemeni, after crediting Hatim’s claims that, while held in the US prison at Kandahar, Afghanistan, before his transfer to Guantánamo:

he was severely mistreated, including being beaten repeatedly, being kicked in the knees and having duct tape used to hold blindfolds on his head. To this day, he cannot raise his left arm without feeling pain. The petitioner also alleges that he was threatened with rape if he did not confess to being a member of the Taliban or al-Qaeda. As a result, he claims that the inculpatory statements that he made in Kandahar were made only because of these threats. He further alleges that after being transferred to GTMO in 2002, he repeated those inculpatory statements in 2004 because he feared that he would be punished if he changed his story.

The most recent example of torture being exposed in the District Court came in February this year, when, in the case of Uthman Abdul Rahim Mohammed Uthman, a Yemeni, Judge Henry H. Kennedy Jr. granted his habeas petition, after refusing to accept the government’s central allegation — that Uthman had been a bodyguard for Osama bin Laden — because these allegations had been made by two men (Sharqwi Abdu Ali al-Hajj and Sanad Yislam Ali al-Kazimi) who were held in secret prisons before their transfer to Guantánamo, and because “there is unrebutted evidence in the record that, at the time of the interrogations at which they made the statements, both men had recently been tortured.”

The need for a thorough investigation

It should be apparent from these reports that the Obama administration will find it impossible to staunch the flow of torture stories, and, moreover, that attempts to do so will only end up destroying whatever lingering credibility the administration has regarding its purported respect for human rights. In January, the Justice Department cynically allowed a senior DoJ official, David Margolis, to override the conclusion of a four-year internal investigation into John Yoo and Jay Bybee, which had concluded that both men should face disciplinary measures for “professional misconduct,” by stating that they had only exercised “poor judgment.”

However, that same month, the United Nations issued a detailed report on secret detention, which, while cautiously endorsing the changes introduced by the Obama administration, pointedly asked what had happened to the many dozens of prisoners held in the CIA’s secret prisons, or rendered by the CIA to prisons in other countries, who had not ended up in Guantánamo. Moreover, just last week, a psychologist in Texas filed a complaint with the Texas State Board of Examiners of Psychologists regarding multiple ethical violations committed by Dr. James Mitchell, one of the architects of the Bush administration’s torture program.

With more revelations of torture expected in the District Court, President Obama would do well to reflect, on this particular day, that when Ronald Reagan signed the UN Convention Against Torture in 1988 he willingly accepted that there are “no exceptional circumstances whatsoever” justifying torture, and also accepted that all signatory countries are obliged to “ensure that all acts of torture are offenses under its criminal law” and “either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.”

In January this year, Glenn Greenwald noted that, when L. Paul Bremer, then the senior State Department official in charge of terrorism policies, described the Reagan administration’s official policy towards terrorists, he declared that “a major element of our strategy has been to delegitimize terrorists, to get society to see them for what they are — criminals — and to use democracy’s most potent tool, the rule of law against them.” Now, however, we have fallen so far from these ideals that, as Greenwald explained:

The express policies of the right-wing Ronald Reagan — “applying the rule of law to terrorists”; delegitimizing Terrorists by treating them as “criminals”; and compelling the criminal prosecution of those who authorize torture — are now considered on the Leftist fringe … In those rare cases when Obama does what Reagan’s policy demanded in all instances and what even Bush did at times — namely, trials and due process for accused Terrorists — he is attacked as being “Soft on Terror” by Democrats and Republicans alike.

On the International Day in Support of Victims of Torture, it is time for Americans who care about justice to demand that the Obama administration stops vacillating on torture, returns to Ronald Reagan’s “Leftist fringe,” and initiates a thorough investigation into the torture policies implemented by the Bush administration.

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 January 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 Truthout.

For an overview of all the habeas rulings, including links to all my articles, and to the judges’ unclassified opinions, see: Guantánamo Habeas Results: The Definitive List. Also see the archive of articles about Guantánamo and habeas corpus here. For articles about US torture, see the links following the article here, here and here, and the archive of articles here. For chronological lists of all my articles, with links, see here.

I do, however, urge everyone to read the whole report, because the introduction and conclusions are important, as are the sections establishing the legal approach to secret detention and its historical context, the section detailing current practices in 25 other countries worldwide, and the annexes, which contain government responses to a questionnaire about secret detention, and a number of case studies.

Given the length of this section of the report (pp. 43-89), I’m publishing it in three parts. The first, published here, provided an introduction, and dealt with “The ‘high-value detainee’ programme and CIA secret detention facilities,” the second looked at “CIA detention facilities or facilities operated jointly with United States military in battlefield zones,” and the third, published below, looks at “Proxy detention sites,” “Complicity in the practice of secret detention” and “Secret detention and the Obama administration.”

Please note that I have inserted hyperlinks where possible. However, the original report contains footnotes, and not all of these provide links to websites. In most cases, I have added the information contained in the footnotes in square brackets, but for full details, please see the original.

Excerpts from the UN “Joint Study on Global Practices in Relation to Secret Detention in the Context of Counter-Terrorism,” February 2010

Prepared by Martin Scheinin, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Manfred Nowak, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Shaheen Ali, the vice-chair of the Working Group on arbitrary detention, and Jeremy Sarkin, the chair of the Working Group on enforced or involuntary disappearances.

C.  Proxy detention sites

141. Since 2005, details have emerged of how the United States was not only secretly capturing, transferring and detaining people itself, but also transferring people to other States for the purpose of interrogation or detention without charge. The practice had apparently started almost simultaneously with the high-value detainee programme. The British Government transmitted to the experts a summary of conclusions and recommendations of the Intelligence and Security Committee report on rendition (2007), in which it was noted that “the Security Service and SIS were … slow to detect the emerging pattern of “renditions to detention” that occurred during 2002” [The summary was sent in response to a questionnaire on allegations of rendition and detention sent by the Working Group on Enforced and Involuntary Disappearances, dated 8 July 2009]. The CIA appears to have been generally involved in the capture and transfer of prisoners, as well as in providing questions for those held in foreign prisons. Beyond that, a clear pattern is difficult to discern: some prisoners were subsequently returned to CIA custody (and were  generally sent on to Guantanamo), while others were sent back to their home countries, or remained in the custody of the authorities in third countries.

142. The Government of the United States has acknowledged that “some enemy combatants have been transferred to their countries of nationality for continued detention” [E/CN.4/2004/3, para. 69]. In its report to the Committee against Torture on 13 January 2006, the Government attempted to deflect criticism of its policy of sending detainees to countries with poor human rights records, including those where they might face the risk of torture, declaring that “the United States does not transfer persons to countries where the United States believes it is ‘more likely than not’ that they will be tortured … The United States obtains assurances, as appropriate, from the foreign government to which a detainee is transferred that it will not torture the individual being transferred” [CAT/C/48/Add.3/Rev.1, para. 30. See also the reply of the Government to a general allegation regarding the its involvement in one case of extraordinary rendition transmitted by the Working Group on Enforced or Involuntary Disappearances, in which it affirmed that “the United States does not transport individuals from one country to another for the purpose of interrogation using torture. Furthermore, the United States has not transported individuals, and will not transport individuals to a country where the Government believes they will be tortured” (A/HRC/10/9, para. 425)]. Various United Nations bodies, including the experts and the Committee against Torture, have criticized heavily this policy of “extraordinary rendition” in a detailed way in the past, defining it as a clear violation of international law. They also expressed concern about the use of assurances [See A/HRC/6/17/Add.3, para. 36; A/HRC/4/40, paras. 43 and 50; E/CN.4/2004/3, para. 69; A/HRC/4/41, para. 458 and A/60/316, para. 45; CAT/C/USA/CO/2, paras. 20-21; and A/60/316, E/CN.4/2006/6 and A/HRC/4/40, paras. 52-56].

143. Given the prevailing secrecy regarding the CIA rendition programme, exact figures regarding the numbers of prisoners transferred to the custody of other Governments by the CIA without spending any time in CIA facilities are difficult to ascertain. Equally, little is known about the number of detainees who have been held at the request of other States, such as the United Kingdom and Canada. While several of these allegations cannot be backed up by other sources, the experts wish to underscore that the consistency of many of the detailed allegations provided separately by detainees adds weight to the inclusion of Jordan, Egypt, Morocco, the Syrian Arab Republic, Pakistan, Ethiopia and Djibouti as proxy detention facilities where detainees have been held on behalf of the CIA. Serious concerns also exist about the role of Uzbekistan as a proxy detention site.

1.  Jordan

144. At least 15 prisoners, mostly seized in Karachi, Pakistan, or in the Pankisi Gorge in Georgia, claim to have been rendered by the CIA to the main headquarters of the General Intelligence Department of Jordan in Amman, between September 2001 and 2004. They include three men and one juvenile subsequently transferred to Guantanamo via Afghanistan:

• Jamal Mar’i, a Yemeni, and the first known victim of rendition in the wake of the attacks of 11 September 2001. Seized from his house in Karachi, on 23 September 2001, he was held for four months in Jordan before being flown to Guantanamo, where he remains [PDF, pp. 130-44] [Postscript: he was freed in December 2009].

• Mohamedou Ould Slahi, a Mauritanian, was rendered to Jordan after handing himself to Mauritanian authorities on 28 November 2001. Mr. Slahi was held in Jordan for eight months, and described what happened to him as “beyond description”. He was then transferred to Afghanistan, where he spent two weeks, and arrived in Guantanamo, where he remains, on 4 August 2002 [PDF, pp. 28-38; PDF, pp. 184-218][Postscript: he won his habeas petition in March 2010].

• Ali al-Hajj al-Sharqawi, a Yemeni, was rendered to Jordan after his capture in Karachi on 7 February 2002. Flown to Afghanistan on 8 January 2004, he was held there for eight months, then flown to Guantanamo on 20 September 2004. Still held at Guantanamo, he has stated that he was continuously tortured throughout his 23 months in Jordan. [Postscript: his torture was referred to by a US judge in this habeas petition].

• Hassan bin Attash, a Saudi-born Yemeni, was 17 years old when he was seized in Karachi on 11 September 2002 with Ramzi bin al-Shibh. He was held in Jordan until  8 January 2004, when he was flown to Afghanistan with Ali al-Hajj al-Sharqawi. He was then delivered to Guantanamo with al-Sharqawi on 20 September 2004. Still held at Guantanamo, he has stated that he was tortured throughout his time in Jordan.

145. Also held were Abu Hamza al-Tabuki, a Saudi seized by United States agents in Afghanistan in December 2001 and released in Saudi Arabia in late 2002 or early 2003, and Samer Helmi al-Barq, seized in Pakistan on 15 July 2003, who was kept for three months in a secret prison outside Pakistan, before being transferred to Jordan on 26 October 2003. He was released on bail in January 2008 [Others reportedly held in Jordan are Jamil Qasim Saeed Mohammed, a Yemeni student rendered from Karachi on 23 October 2001, who has not been heard of since; Ibrahim al- Jeddawi, a Saudi seized in Yemen (or Kuwait) in the first half of 2002, who was reportedly transferred to Saudi custody; at least five other men (three Algerians, a Syrian and a Chechen), seized in Georgia in 2002; an Iraqi Kurd, possibly seized in Yemen; and a Tunisian, seized in Iraq. The current whereabouts of all these men is unknown. According to former prisoners interviewed by Human Rights Watch, Ramzi bin al-Shibh, seized with Hassan bin Attash and one of 14 “high-value detainees” transferred to Guantanamo in September 2006, was also held in Jordan for an unspecified amount of time, as was Ibn al-Sheikh al-Libi, seized in Afghanistan in late 2001, who was subjected to multiple renditions. See also para. 146. For Samer Helmi al-Barq, see Amnesty International, submission to the United Nations Universal Periodic Review, February 2009 (PDF)].

2.  Egypt

146. At least seven men were rendered to Egypt by the CIA between September 2001 and February 2003, and another was rendered to Egypt from the Syrian Arab Republic, where he had been seized at the request of the Canadian authorities:

• Abdel Hakim Khafargy, an Egyptian-born, Munich-based publisher, was allegedly seized in Bosnia and Herzegovina on 24 September 2001, and rendered to Egypt a few weeks later, after being held by United States forces at its base in Tuzla. He was returned to Germany two months later [PDF].

• Mamdouh Habib, an Australian seized in Pakistan in November 2001, was rendered to Egypt three weeks later and held for six months. Transferred to Guantanamo in June 2002, he was released in January 2005. He claims to have been tortured throughout his time in Egypt [For recent developments, see this article].

• Muhammad Saad Iqbal Madni, a Pakistani-Egyptian national, was seized by the Indonesian authorities in Jakarta on 9 January 2002, flown first to Egypt and then to Bagram, where he was held for 11 months. He arrived in Guantanamo on 23 March 2003 and was released in August 2008. Mr. Madni indicated that, during his detention in Cairo, he was subjected to ill-treatment, including electroshocks applied to his head and knees and, on several occasions, he was hung from metal hooks and beaten. Furthermore, he reported that was denied medical treatment for the blood in his urine [Interview with Muhammad Saad Iqbal Madni (annex II, case 15)].

• As confirmed by the Government of Sweden in its response to a letter sent by the experts, following a decision made by the Government to refuse asylum in Sweden to the Egyptian citizens Mohammed Alzery and Ahmed Agiza and to expel them, they were deported to Egypt by the Swedish Security Police with the assistance of the United States authorities (CIA). Both have said that they were tortured in Egyptian custody [Agiza v Sweden, communication 233/2003 (CAT/C/34/D/233/2003); and Alzery v Sweden, communication 1416/2006 (CCPR/C/88/D/1416/2005)]. Alzery was released on 12 October 2003 without charge or trial, but was placed under police surveillance. Ahmed Agiza had already been tried and sentenced in absentia by an Egyptian military court at the time of the decision by the Government of Sweden to deport him. In April 2004, the court’s decision was confirmed and Agiza was convicted on terrorism charges following a trial monitored by Human Rights Watch, which described it as “flagrantly unfair”.

• Ibn al-Sheikh al-Libi, a Libyan, an emir of the Khaldan training camp in Afghanistan, was seized by Pakistani officials in late 2001 while fleeing Afghanistan and was rendered to Egypt where, under torture, he claimed that there were links between Al-Qaida and Saddam Hussein, which were used by the United States administration to justify the invasion of Iraq. Also held in secret CIA detention sites in Afghanistan, and possibly in other countries, he was returned to the Libyan Arab Jamahiriya in 2006, where he reportedly died by committing suicide in May 2009.

• Hassan Mustafa Osama Nasr (also known as Abu Omar), an Egyptian, was kidnapped in Milan on 17 February 2003, and rendered to Egypt, where he was held for four years (including 14 months in secret detention) before being released [For more details on this case, in particular with regard to the abduction of Abu Omar in Milan and the ensuing judicial proceedings in Italy, see the section on Italian complicity in the renditions programme below]. Allegations of ill-treatment in Egyptian detention include being hung upside down and having had electric shocks applied to his testicles [PDF, p, 4].

The eighth man, Ahmad Abou El-Maati, a Canadian-Egyptian national, was seized at Damascus airport on his arrival from Toronto on 11 November 2001. He was held in the Far Falestin prison in the Syrian Arab Republic until 25 January 2002, when he was transferred to Egyptian custody, where he remained in various detention sites (including in secret detention until August 2002) until his release on 7 March 2004. During the initial period of his detention in Egypt, he was subjected to heavy beatings and threats of rape against his sister. At a later stage during the secret detention phase, he was handcuffed with his hands behind his back practically continuously for 45 days in a solitary confinement cell, which he described as being very painful and which made it hard to use the toilet and wash. He was also subjected to sleep deprivation [Internal inquiry into the actions of Canadian officials in relation to Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin, pursuant to an Order in Council dated 11 December 2006.  See also Commission of inquiry into the actions of Canadian officials in relation to Maher Arar, report of the fact finder of 14 October 2005].

3.  Syrian Arab Republic

147. At least nine detainees were rendered by the CIA to the Syrian Arab Republic between December 2001 and October 2002, and held in Far Falestin, run by Syrian Military Intelligence. All those able to speak about their experiences explained that they were tortured. As in the case of Egypt (see para. 146 above), other men were seized at the request of the Canadian authorities:

• Muhammad Haydar Zammar, a German national, was seized in Morocco on 8 December 2001, and rendered by the CIA to Far Falestin on 22 December 2001. In October 2004, he was moved to an “unknown location”; in February 2007, he received a 12-year sentence from the Higher State Security Court. He was convicted of being a member of the banned Muslim Brotherhood, a crime punishable by death in the Syrian Arab Republic [See A/HRC/7/4/Add.1., this Amnesty International appeal, and CAT/C/49/Add.4]. In its reply for the present study, the Government of Morocco indicated that the police had arrested Mr. Zammar following information that he had been implicated in the events of 11 September 2001. The Government also stated that Mr. Zammar had not been subjected to secret or arbitrary detention in Morocco, and that he had been transferred to the Syrian Arab Republic on 30 December 2001, in the presence of the Syrian Ambassador accredited to Morocco.

• Three detainees were rendered to the Syrian Arab Republic on 14 May 2002: Abdul Halim Dahak, a student seized in Pakistan in November 2001, Omar Ghramesh and an unnamed teenager, the latter being seized with Abu Zubaydah in Faisalabad, Pakistan, on 28 March 2002 [Stephen Grey, Ghost Plane: The Inside Story of the CIA’s Rendition Programme, Hurst & Co., 2006), pp. 4, 54 and 284]. All had been tortured. Their current whereabouts are unknown.

• Noor al-Deen, a Syrian teenager, was captured with Abu Zubaydah and rendered to Morocco, then to the Syrian Arab Republic. His current whereabouts are unknown.

• According to Abdullah Almalki (see para. 148 below), two other prisoners, Barah Abdul Latif and Bahaa Mustafa Jaghel, were also transferred from Pakistan to the Syrian Arab Republic, the first in February/March 2002, the second in May 2002. Both had been tortured. Their current whereabouts are unknown.

• Yasser Tinawi, a Syrian national seized in Somalia on 17 July 2002, was flown to Ethiopia by United States agents, who interrogated him for three months. On 26 October, he was flown to Egypt; on 29 October 2002, he arrived in the Syrian Arab Republic. In March 2003, he received a two-year sentence from a military court.

• Maher Arar, a Canadian-Syrian national, was seized at John F. Kennedy airport in New York on 26 September 2002, held for 11 days in the Metropolitan Detention Centre in Manhattan, then rendered to the Syrian Arab Republic on 8 October, via Jordan [A/HRC/4/33/Add.3, paras. 33, 43-45, footnote 11], where he was held in secret detention at Far Falestin until later that month. Jordan alleged that Mr. Arar had arrived in Amman as an ordinary passenger, but was asked to leave the country because his name was on a list of wanted terrorists, and given a choice of destination. It also alleged that he had asked to be voluntarily taken by car to the Syrian Arab Republic. During his period at Far Falestin, he was severely beaten with a black cable and threatened with electric shocks: “The pattern was for Mr. Arar to receive three or four lashes with the cable then to be questioned, and then for the beating to begin again.” The torture allegations were found to be completely consistent with the results of the forensic examinations conducted in Canada. On 14 August 2003, Mr. Arar was moved to Sednaya prison and released on 29 September. The official inquiry in the Arar case also stressed the catastrophic impact of the described events in terms of his and his family’s economic situation and his family life in general.

148. When Ahmad Abou El-Maati (see para. 146) was held in Far Falestin in the Syrian Arab Republic, he was held in solitary confinement in poor conditions and subjected to ill-treatment, including blindfolding, forced to remove almost all his clothes, beaten with cables, forcible shaving and had ice-cold water poured on him. Abdullah Almalki, a Canadian-Syrian national, also spent time in secret detention in the Syrian Arab Jamahiriya, in Far Falestin, from 3 May to 7 July 2002, when he received a family visit. On 25 August 2003, he was sent to Sednaya prison. He was released on 10 March 2004. He returned to Canada on 25 July 2004 after being acquitted of all charges by the Syrian State Supreme Security court [Internal inquiry, paras. 10-38] .

149. Another Canadian, Muayyed Nureddin, an Iraqi-born geologist, was detained on the border of the Syrian Arab Republic and Iraq on 11 December 2002, when he returned from a family visit in northern Iraq. He was secretly detained for a month in Far Falestin, then released on 13 January 2003 [Internal inquiry, paras. 10-38].

150. In its response to the questionnaire sent by the experts, the Government of the Syrian Arab Republic stated that the country had no secret prisons or detention centres. There were no cases of secret detention, and no individuals had been arrested without the knowledge of the competent authorities. No authorization had been granted to the security service of any foreign State to establish secret detention facilities in the Syrian Arab Republic. A number of foreign individuals had been arrested in the country at the request of other States, and had been informed of the legal basis for the arrests and their places of detention. The above-mentioned States were also informed of whether the individuals concerned had been brought before the Courts or transferred outside of the country. Individuals belonging to different terrorist groups had been prosecuted and detained in public prisons, in compliance with relevant international standards. They would be judged by the competent judicial authorities. Court proceedings would be public and be held in the presence of defence lawyers, families, human rights activists and foreign diplomats. Some would be publicized through the media. The Interpol branch within the Security Service of the Ministry of the Interior was cooperating with international Interpol branches with regard to suspected terrorist and other criminal activities.

4.  Morocco

151. At least three detainees were rendered to Morocco by the CIA between May and July 2002, and held in Temara prison, including the following:

• Abou Elkassim Britel, of Moroccan origin and an Italian citizen through marriage and naturalization, was seized in Lahore, Pakistan, on 10 March 2002. He stated that he was tortured in Pakistani custody. On 23 May 2002, he was rendered by the CIA to Morocco, where he was held in secret detention until February 2003, and where he alleged he was also tortured. He was released in February 2003, but in May 2003 was seized again, held for another four months in Temara, then sentenced to 15 years in prison, which was reduced to nine years on appeal [Interview with Khadija Anna L. Pighizzini, wife of Abou Elkassim Britel (annex II, case 7)]. In its submission for the present study, the Government of Morocco stated that Mr. Britel had not been subjected to “arbitrary detention or torture” between May 2002 and February 2003, or between May and September 2003.

• Binyam Mohamed, an Ethiopian national and British resident, was seized in Karachi, Pakistan, on 10 April 2002. He was held for approximately three months, during which time he was subjected to torture. On 21 July 2002, he was rendered by the CIA to Morocco, where he was held for 18 months in three different unknown facilities. During that period, he was allegedly threatened, subjected to particularly severe torture and other forms of ill-treatment; deprived from sleep for up to 48 hours at a time; and his prayers were interrupted by turning up the volume of pornographic movies. In January 2004, he was flown to the CIA “dark prison” in Kabul, and in May he was moved to Bagram. He was flown to Guantanamo on 20 September 2004, and was released in February 2009 [Interview with Binyam Mohamed (annex II, case 18); see also the finding of two British High Court judges that the treatment to which he had been subjected presented an “arguable case of torture, or cruel, inhuman or degrading treatment” (PDF)] [The third prisoner is Noor al-Deen (see para. 147), who was moved to the Syrian Arab Republic in 2003].

5.  Pakistan

152. From December 2001 until the summer of 2002, when the majority of the detainees who ended up in Guantanamo were seized, detention facilities in Pakistan, where several hundred detainees were held before being transferred to Kandahar or Bagram, were a crucial component of what was then, exclusively, a secret detention programme. Many of these men, seized near the Pakistani border, or while crossing from Afghanistan to Pakistan, were held in prisons in Kohat and Peshawar, but others were held in what appear to be impromptu facilities, which were established across the country in numerous locations. The then President of Pakistan, Pervez Musharraf, stated that:

Since shortly after 9/11, when many Al-Qaida members fled Afghanistan and crossed the border into Pakistan, we have played multiple games of cat and mouse with them. The biggest of them all, Osama bin Laden, is still at large at the time of this writing, but we have caught many, many others. Some are known to the world, some are not. We have captured 672 and handed over 369 to the United States. We have earned bounties totalling millions of dollars [Pervez Musharraf, In The Line Of Fire: A Memoir, Free Press, 2006].

153. Two former prisoners, Moazzam Begg and Omar Deghayes, described their experiences of secret detention in Pakistan to the experts:

Omar Deghayes, a Libyan national and British resident, was arrested in April 2002 at his home in Lahore after a hundred people in black tracksuits surrounded the house. In the presence of an American officer, he was then taken, handcuffed and hooded, to a police station and, shortly afterwards, to an old fortress outside Lahore, where he was held with other men from Palestine, Tunisia, the Libyan Arab Jamahiriya and Egypt, and beaten and kicked, and heard electroshocks and people screaming. According to his account, “the place was run by Pakistanis and appeared to be a maximum security prison for extremist opponents that were traded with different States such as Libya and the United States.” He also stated that he was tortured for a month without any contact with the external world, and that the ill-treatment included punching, beating, kicking, stripping, being hit in the back with wooden sticks, and stress positions for up to three days and three nights. In mid-May, two Americans in plain clothes visited, took photographs and asked questions. He was then moved to a place in Islamabad, which looked like a barracks, where he was held incommunicado for one month without access to a lawyer or ICRC, and was interrogated in a nearby house by American officers, who identified themselves as CIA, and, on one occasion, by a British agent from MI6. He said that torture took place in the barracks but not during the interrogations, and that he was subjected to drowning and stress positions, and recalled a room full of caged snakes that guards threatened to open if he did not speak about what he had done in Afghanistan. He then met with British and American officers, who finally “acquired” him with other detainees, and took him to Bagram, where he was heavily tortured and sexually abused by American soldiers. He was flown to Guantanamo in August 2002, and released in December 2007 [Interview with Omar Deghayes (annex II, case 8)].

Moazzam Begg, a British citizen, moved to Kabul, with his wife and three children, to become a teacher and a charity worker in 2001. After leaving Afghanistan in the wake of the United States-led invasion, on 31 January 2002, he was abducted from a house in Islamabad, where he was living with his family, and taken to a place in Islamabad (not an official detention facility), where those who held him were not uniformed officers and there were people held in isolation. Held for three weeks, he was moved to a different venue for interviews with American and British intelligence officers, but his wife did not know where he had been taken, and he was denied access to a lawyer or consular services. He was then taken to a military airport near Islamabad and handed over to American officers. He was held in Afghanistan and Guantanamo for three years, and was released in January 2005 [Interview with Moazzam Begg (annex II, case 6)].

6.  Ethiopia

154. The Government of Ethiopia served as the detaining authority for foreign nationals of interest to United States and possibly other foreign intelligence officers between 30 December 2006 and February 2007 [For allegations in interviews conducted by Federal Bureau of Investigation officers, see for example the case of Meshal vs Higgenbotham. See also Human Rights Watch, “Why am I still here?: the 2007 Horn of Africa renditions and the fate of those still missing” (PDF)]. On 2 May 2007, a number of special procedures addressed the Government of Ethiopia, adding the following details:

In December 2006, the conflict between the militias of the Council of Somali Islamic Courts and the Transitional Federal Government of Somalia, supported by armed forces of Ethiopia, caused a large flow of refugees seeking to cross the border from Somalia into Kenya. On 2 January 2007, Kenyan authorities announced the closure of the border for security reasons. Since then, it is reported that the Kenyan security forces have been patrolling the border and have arrested a number of those seeking to cross it. Kenya has deported at least 84 of those arrested back to Somalia, from where they were taken to Ethiopia [A/HRC/7/3/Add.1, para. 71].

155. The experts interviewed two of those captured between December 2006 and February 2007: Bashir Ahmed Makhtal (mentioned in the Special Rapporteur’s communication) and Mohamed Ezzoueck. The latter, a British national, was detained on 20 January 2007 in Kiunga village, Kenya, after crossing the Somali-Kenyan border and then transferred to Nairobi, where he was held in three different locations. Mr. Ezzoueck reported having been detained in Kenya for about three weeks and then transferred to Somalia, where he was held for a few days before being transferred, via Nairobi, back to London. According to his testimony, he was interrogated by a Kenyan army major and Kenyan intelligence service officers, FBI officers and British security services officers, and repeatedly asked about his involvement with terrorist groups, including Al Qaida [Interview with Mohamed Ezzouek (annex II, case 10)]. Mr. Makhtal, an Ethiopian-born Canadian, was arrested on the border between Kenya and Somalia on 30 December 2006 by intelligence agents and held at a police detention centre. He was subsequently transferred by car to a prison cell in Gigiri police station in Nairobi. On 21 January 2007, the Kenyan authorities sent him to Mogadishu. On the following day, he was taken to Addis Ababa by an Ethiopian military plane. He was then held for approximately 18 months incommunicado in Mekalawi federal prison, often in solitary confinement and in poor conditions, then ultimately sentenced to life imprisonment by the High Court of Ethiopia [Interview with Bashir Makhtal (annex II, case 16)].

156. In a letter dated 23 May 2007, the Government of Ethiopia informed the relevant special procedures mandate holders that the Transitional Federal Government of Somalia had handed over to Ethiopia 41 individuals captured in the course of the conflict in Somalia; most of these detainees had been released. Only eight of the detainees remained in custody by order of the court. The Government also noted that “the allegation that there are more than seventy others in addition to those named in the communication is false, as are the allegations that the detainees are held incommunicado, and that they might be at risk of torture” [A/HRC/7/3/Add.1, para. 71]. However, in September 2008, Human Rights Watch published a report stating that at least 10 detainees were still in Ethiopian custody, and the whereabouts of others were unknown [PDF].

7.  Djibouti

157. The experts received information proving that a detainee in the CIA secret detention programme, Mohammed al-Asad, had been transferred by Tanzanian officials by plane to Djibouti on 27 December 2003 [High Court of Tanzania at Dar es Salaam, criminal application No. 23 of 2004, Abdullah Salehe Mohsen al-Asad vs. Director of Immigration Services ex parte Mohamed Abdullah Salehe Mohsen Al-Asaad counter affidavit, 30 June 2004]. In Djibouti, Mr. al-Asad was detained for two weeks in secret detention, where he was interrogated by a white English-speaking woman and a male interpreter, mostly on his connections to the al-Haramain foundation. The woman identified herself as American. Mr. al-Asad’s own recollection is consistent with his having been held in Djibouti. One of his guards told him that he was in Djibouti and there was a photograph of President Guelleh on the wall of the detention facility. After approximately two weeks, Mr. al-Asad was taken to an airport in Djibouti, where a team of individuals dressed entirely in black stripped him, inserted an object in his rectum, diapered and photographed him, and strapped him down in a plane. The detention site may have been in Camp Lemonier, which allegedly has been used on a short-term or transitory basis for several detainees being transferred to secret detention elsewhere.

8.  Uzbekistan

158. No confirmation has ever been provided by either the Government of the United States or that of Uzbekistan that detainees were rendered to proxy prisons in Uzbekistan. In May 2005, however, the New York Times spoke to “a half-dozen current and former intelligence officials working in Europe, the Middle East and the United States” who stated that the United States had sent terror suspects to Uzbekistan for detention and interrogation. A United States intelligence official estimated that the number of terrorism suspects sent by the United States to Tashkent was in the dozens. The New York Times also obtained flight logs, showing that at least seven flights were made to Uzbekistan from early 2002 to late 2003” by two planes associated with the CIA rendition programme (a Gulfstream jet and a Boeing 737), and noted that, on 21 September 2003, both planes had arrived at Tashkent. According to the newspaper, the flight logs showed that “the Gulfstream had taken off from Baghdad, while the 737 had departed from the Czech Republic”. On 14 August 2009, the BBC interviewed Ikrom Yakubov, an Uzbek intelligence officer who has been granted political asylum in the United Kingdom, who stated that the United States had rendered terrorist suspects for questioning to Uzbekistan, but added, “I don’t want to talk about it as there might be serious concerns for my life in the future to discuss renditions.” On 22 August 2009, the story resurfaced once more, when Der Spiegel reported that, in an arrangement between the private security firm Blackwater and the CIA, Blackwater and its subsidiaries had been commissioned “to transport terror suspects from Guantanamo to interrogations at secret prison camps in Pakistan, Afghanistan and Uzbekistan”.

D.  Complicity in the practice of secret detention

159. After September 2006, the direct role of the CIA in secret detentions seemed to have shrunk significantly, with “current and former American Government officials” explaining in May 2009 to the New York Times that, in the last two years of the Bush administration, the Government of the United States had started to rely heavily on the foreign intelligence services to capture, interrogate and detain all but the highest level terrorist suspects seized outside the battlefields of Iraq and Afghanistan. According to the newspaper, “in the past 10 months, … about a half-dozen mid-level financiers and logistics experts working with Al-Qaida have been captured and are being held by intelligence services in four Middle Eastern countries after the United States provided information that led to their arrests by local security services”. Instead of actively detaining persons in secret, the United States — and many other countries — became complicit in the practice of secret detention. For the purposes of the present study, the experts state that a country is complicit in the secret detention of a person in the following cases:

(a) When a State has asked another State to secretly detain a person (covering all cases mentioned in paras. 141-158 above);

(b) When a State knowingly takes advantage of the situation of secret detention by sending questions to the State detaining the person or by soliciting or receiving information from persons who are being kept in secret detention. This includes at least the following States:

• The United Kingdom of Great Britain and Northern Ireland, in the cases of several individuals, including Binyam Mohamed [Interview with Binyam Mohamed (annex II, case 18)], Salahuddin Amin, Zeeshan Siddiqui, Rangzieb Ahmed and Rashid Rauf [PDF]. In its submission for the present study, the British Government referred to ongoing and concluded judicial assessment of the cases and stressed the work of the parliamentary Intelligence and Security Committee, as well as its policy of clear opposition to secret detention [According to the Government of the United Kingdom, the judge in Mr Ahmed’s case stated, “I specifically reject the allegations that the British authorities were outsourcing torture”. The judge examined Mr. Amin’s allegations and found that there was no evidence to suggest that the British authorities had been complicit in his unlawful detention or ill-treatment in Pakistan];

• Germany, in the case of Muhammad Haydar Zammar, who was reportedly interrogated on at least one occasion, on 20 November 2002, by agents of German security agencies while he was secretly held in the Syrian Arab Republic [See “Kanzleramt dealte mit Syriens Geheimdienst”, Der Spiegel, 19 November 2005]. The Government reported having been  informed about four cases of renditions or enforced disappearances concerning the Federal Republic of Germany: the cases of Khaled El-Masri, Murat Kurnaz, Muhammad Haydar Zammar and Abdel Halim Khafagy, which occurred between September 2001 and the end of 2005. However, the German authorities did not directly or indirectly participate in arresting these persons or in rendering them for imprisonment. In the cases of El-Masri and Khafagy, the German missions responsible for consular assistance had no knowledge of their imprisonment and were therefore unable to ensure that their rights were observed or guarantee consular protection; in the cases of Zammar and Kurnaz, the German authorities worked intensively to guarantee consular protection. However, they were denied access to the detainees and were thereby prevented from effectively exercising consular protection [Response to a questionnaire on allegations of rendition and detention sent by the Working Group on Enforced and Involuntary Disappearances, 30 September 2009]. In a letter dated 9 December 2009, the German Federal Ministry of Justice further reported that it had become aware of the case of Mr. Kurnaz on 26 February 2002, when the Chief Federal Prosecutor informed the Ministry that it would not take over a preliminary investigation pending before the Prosecution of the Land of Bremen. The Office of the Chief Federal Prosecutor had received a report from the Federal Criminal Police Office on 31 January 2002 that, according to information by the Federal Intelligence Service, Mr. Kurnaz had been arrested by United States officials in Afghanistan or Pakistan. In the case of Mr. El-Masri, on 8 June 2004, the Federal Chancellery and the Federal Foreign Office received a letter from his lawyer that Mr. El-Masri had been abducted in the former Yugoslav Republic of Macedonia on 31 December 2003, presumably transferred to Afghanistan and kept there against his will until his return to Germany on 29 May 2004. The Federal Ministry of Justice was informed about these facts on 18 June 2004. The experts note, however, that according to the final report of a Parliamentary Commission of Inquiry, the Government became aware of the case of Mr. El-Masri on 31 May 2004, when the Ambassador of the United States informed the Federal Minister for the Interior of Germany [PDF];

• Canada, for providing intelligence to the Syrian Arab Republic in the cases of Maher Arar, Ahmad el-Maati, Abdullah Almaki and Muayyed Nureddin. In its submission for the present study, the Government denied that any of the named individuals was detained or seized by a State at the request of Canada. The experts welcome the fact that all the above-mentioned cases have been the subject of extensive independent inquiry processes within Canada and that, in the case of Mr. Arar, substantive reparations has been provided to the victims;

• Australia, for providing intelligence to interrogators in the case of the secret detention of Mamdouh Habib. Mr Habib also alleges that an Australian official was present during at least one of his interrogation sessions in Egypt. The experts understand that Mr. Habib is currently suing the Government of Australia, arguing that it was complicit in his kidnapping and subsequent transfer to Egypt. In its submission for the present study, the Government denies that any Australian officer, servant and/or agent was involved in any dealings with or mistreatment of Mr. Habib, and refers to ongoing litigation;

(c) When a State has actively participated in the arrest and/or transfer of a person when it knew, or ought to have known, that the person would disappear in a secret detention facility or otherwise be detained outside the legally regulated detention system. This includes at least the following States:

• Italy, for its role in the abduction and rendition of Hassan Mustafa Osama Nasr (also known as Abu Omar), an Egyptian kidnapped by CIA agents on a street in Milan in broad daylight on 17 February 2003. He was transferred from Milan to the NATO military base at Aviano by car, and then flown, via the NATO military base of Ramstein in Germany, to Egypt, where he was held for four years (including 14 months in secret detention) before being released. The European Parliament considered it “very likely, in view of the involvement of its secret services, that the Italian Government of the day was aware of the extraordinary rendition of Abu Omar from within its territory” [European Parliament Committee report, paras. 50 and 54]. Prosecutors opened an investigation and charged 26 United States citizens (mostly CIA agents) with abduction, as well as members of the Italian military secret services (SISMI) with complicity in the abduction, among them the head of SISMI [Reply of the Government of Italy to the joint request for relevant information by the four experts (see annex I)]. The Italian Ministry of Justice, however, refused to forward the judiciary’s requests for extradition of the CIA agents to the Government of the United States; as a result, the United States citizens were tried in absentia. On 4 November 2009, the court found 23 of them guilty. The court also convicted two SISMI agents and sentenced them to three years imprisonment for their involvement in the abduction. The then commander of SISMI and his deputy, however, were not convicted, the court having dismissed the cases against them on the grounds that the relevant evidence was covered by State secret [The executive branch of the Government of Italy successfully raised the issue of State secret before the Constitutional Court; see the reply of the Government of Italy to the joint request for relevant information by the four experts (annex I)]. In its submission for the present study, the Government of Italy notes that the case is continuing at the appeal level, which prevents it from drawing any conclusions prior to a definitive verdict;

• Kenya, for detaining 84 persons in various secret locations in Nairobi before transferring them on three charter flights between 20 January and 10 February 2007 to Somalia. They were subsequently transferred to Ethiopia, where they were kept in secret detention. They were not provided with an opportunity to challenge their forcible physical removal at any stage (see also paras. 154-156 above) [See also Meshal vs Higgenbotham; Redress and Reprieve report, “Kenya and counter terrorism: a time for change”, February 2009 (PDF), and Human Rights Watch, “Why am I still here?” (PDF). The experts have received allegations of cooperation with United States intelligence that dates back to 2003; see interview with Suleiman Abdallah (annex II, case 2)].

(d) A specific form of complicity in this context are these cases where a State holds a person shortly in secret detention before handing them over to another State where that person will be put in secret detention for a longer period. This includes at least the following countries:

• The former Yugoslav Republic of Macedonia, for its role in the case of Khaled El-Masri [Interview with Khaled el-Masri (annex II, case 9)];

• Malawi, for allegedly holding Laid Saidi in secret detention for a week;

• The Gambia: during an interview with the experts, Bisher al-Rawi reported that, on 8 November 2002, he was arrested upon arrival at Banjul airport by the Gambian Intelligence Agency, then taken to an office and later to a house located in a Banjul residential place before he was handed over to the CIA and rendered to Afghanistan.

(e) When a State has failed to take measures to identify persons or airplanes passing through its airports or airspace after information of the CIA programme involving secret detention had already been revealed. The issue of rendition flights was, and still is, the subject of many separate investigations at the national or regional level. Therefore, the experts decided to refrain from going into the details of this issue [See, inter alia, the European Parliament Committee report, 18 June 2009 (PDF); the statement of the Foreign Secretary to the House of Commons on United States rendition flights, 21 February 2008, and Dick Marty,”Secret detentions and illegal transfers of detainees involving Council of Europe member states: second report” (PDF)].

E.  Secret detention and the Obama administration

160. In its response to the questionnaire sent by the experts, the United States stated that:

The Obama Administration has adopted the following specific measures:

• Instructed the CIA to close as expeditiously as possible any detention facilities that it currently operated as of January 22, 2009 and ordered that the CIA shall not operate any such detention facility in the future.

• Ordered that the Guantanamo Bay detention facility be closed as soon as practicable.

• Required the International Committee of the Red Cross (ICRC) to be given notice and timely access to any individual detained in any armed conflict in the custody or under the effective control of the United States Government, consistent with Department of Defense regulations and policies.

• Ordered a comprehensive review of the lawful options available to the Federal Government with respect to detention of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations.

• Reaffirmed that all persons in U.S. custody must be treated humanely as a matter of law.

• Mandated that detention at Guantanamo conform to all applicable laws governing conditions of confinement, including Common Article 3 of the Geneva Conventions, and directed a review of detention conditions at Guantanamo to ensure such compliance.

• Ordered a review of U.S. transfer policies to ensure that they do not result in the transfer of individuals to other nations to face torture or otherwise for the purpose, or with the effect, of undermining or circumventing the commitments or obligations of the United States to ensure the humane treatment of individuals in its custody or control. The resulting Task Force on transfer practices recommended to the President in August that (1) the State Department be involved in evaluating all diplomatic assurances; (2) the Inspectors General of the Departments of State, Defense, and Homeland Security prepare an annual report on all transfers relying on assurances; and (3) mechanisms for monitoring treatment in the receiving country be incorporated into assurances.

• Announced the transfer of at least 7 detainees from military custody to U.S. criminal law enforcement proceedings, and transferred 25 detainees to date to third-countries for repatriation or resettlement.

• Worked with Congress to revise U.S. laws governing military commissions to enhance their procedural protections, including prohibiting introduction of evidence obtained as a result of cruel, inhuman, or degrading treatment.

• Expanded the review procedures for detainees held by the Department of Defense in Afghanistan in order to enhance the transparency and fairness of U.S. detention practices. Detainees are permitted an opportunity to challenge the evidence that is the basis for their detention, to call reasonably available witnesses, and to have the assistance of personal representatives who have access to all reasonably available relevant information (including classified information). Proceedings generally shall be open, including to representatives of the ICRC, and possibly to non-governmental organizations.

• Established more tailored standards and rigorous procedures for evaluating assertions of the State secrets privilege, including establishing an internal accountability mechanism, ensuring that the privilege is never asserted to avoid embarrassment or conceal violations of law, and creating a referral mechanism to the Office of Inspector General where the privilege is asserted but there is credible evidence of a violation of law. These standards and procedures were established in order to strike a better balance between open government and the need to protect vital national security information.

• The Department of Justice initiated a preliminary criminal investigation into the interrogation of certain detainees.

These measures cumulatively seek to reaffirm the importance of compliance with the rule of law in U.S. detention practices, to ensure U.S. adherence to its international legal obligations, and to promote accountability and transparency in this important area of national security policy.

161. The experts welcome the above commitments. They believe, however, that clarification is required as to whether detainees were held in CIA “black sites” in Iraq and Afghanistan or elsewhere when President Obama took office, and, if so, what happened to the detainees who were held at that time. Also, the experts are concerned that the executive order instructing the CIA “to close any detention facilities that it currently operates” does not extend to the facilities where the CIA detains individuals on “a short-term transitory basis”. The order also does not seem to extend to detention facilities operated by the Joint Special Operation Command.

162. The experts also welcome in particular the new policy implemented in August 2009, under which the military must notify ICRC of detainees’ names and identification number within two weeks of capture. Nevertheless, there is no legal justification for this two-week period of secret detention. According to article 70 of the Third Geneva Convention, prisoners of war are to be documented, and their whereabouts and health conditions made available to family members and to the country of origin of the prisoner within one week. Article 106 of the Fourth Geneva Convention (governing the treatment of civilians) establishes virtually identical procedures for the documentation and disclosure of information concerning civilian detainees. Furthermore, it is obvious that this unacknowledged detention for one week can only be applied to persons who have been captured on the battlefield in a situation of armed conflict. This is an important observation, as the experts noted with concern news reports quoting current Government officials saying that “the importance of Bagram as a holding site for terrorism suspects captured outside Afghanistan and Iraq has risen under the Obama administration, which barred the Central Intelligence Agency from using its secret prisons for long-term detention”.

163. The situation at the Bagram Theater Internment Facility remains of great concern. In March 2009, United States district Court Judge John D. Bates ruled that the habeas corpus rights granted to the Guantanamo detainees by the Supreme Court in June 2008 extended to non-Afghan detainees who had been seized in other countries and rendered to Bagram because “the detainees themselves as well as the rationale for detention are essentially the same”, and because the review process established at the prison “falls well short of what the Supreme Court found inadequate at Guantánamo”. The four petitioners were among the 94 prisoners that Assistant Attorney General Stephen G. Bradbury admitted were held in CIA custody between 2001 and 2005. Judge Bates found that, in holding detainees at Bagram not as prisoners of war but as “unlawful enemy combatants”, the Bush administration had put in place a review process, the Unlawful Enemy Combatant Review Board, in which “detainees cannot even speak for themselves; they are only permitted to submit a written statement. But in submitting that statement, detainees do not know what evidence the United States relies upon to justify an ‘enemy combatant’ designation — so they lack a meaningful opportunity to rebut that evidence”.

164. The above-mentioned ruling has been appealed by the current United States administration, even though Judge Bates noted that habeas rights extend neither to Afghan detainees held at Bagram, nor to Afghans seized in other countries and rendered to Bagram. In its appeal against Judge Bates’ ruling, the United States administration notified the court that it was introducing a new review process at Bagram, “modifying the procedures for reviewing the status of aliens held by the Department of Defense at the Bagram Theater Internment Facility” [PDF]. However, the experts are concerned that the new review system fails to address the fact that detainees in an active war zone should be held according to the Geneva Conventions, screened close to the time and place of capture if there is any doubt about their status, and not be subjected to reviews at some point after their capture to determine whether they should continue to be held. The experts are also concerned that the system appears to aim specifically to prevent United States courts from having access to foreign detainees captured in other countries and rendered to Bagram. While the experts welcome the fact that the names of 645 detainees at Bagram are now known, they urge the Government of the United States to provide information on the citizenship, length of detention and place of capture of all detainees currently held at Bagram Air Base.

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 January 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.

See here for the Bagram prisoner list. For a sequence of articles discussing the use of torture in secret prisons, see: Rendered to Egypt for torture, Mohammed Saad Iqbal Madni is released from Guantánamo (September 2008), A History of Music Torture in the “War on Terror” (December 2008), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two) (April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison (May 2009), WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009), What The British Government Knew About The Torture Of Binyam Mohamed (August 2009), UK Judges Order Release Of Details About The Torture Of Binyam Mohamed By US Agents (October 2009), Dark Revelations in the Bagram Prisoner List (January 2010), UN Secret Detention Report Asks, “Where Are The CIA Ghost Prisoners?” (January 2010), Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims (April 2010), Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture (April 2010), and also see the extensive Binyam Mohamed archive.

All of these deaths were, in one way or another, suspicious, except for Hekmati, a 68-year old Afghan, whose story, instead, hinted at medical neglect, and also revealed, on close examination, the callous cruelty of the regime at Guantánamo. A quiet hero of the anti-Taliban resistance, who had helped free three important anti-Taliban leaders from a Taliban jail, he had discovered at Guantánamo that no one in authority was interested in ascertaining whether or not there was any truth to his story, and he went to his grave without having been able to clear his name.

This ought to be a source of undying shame for those who failed to investigate his story — and who may well have not acted decisively to prevent the spread of his cancer — but, unlike the other five men, his death does not carry with it the suspicion that he was deliberately killed, whereas all the others do. Last week, I recalled the Saudi prisoner Abdul Rahman al-Amri, on the third anniversary of his death, and was unable to come up with an adequate explanation for why he would take his own life.

A devout man, who had traveled to Afghanistan to help the Taliban fight the Northern Alliance, he was deeply troubled by the kinds of sexual humiliation to which he and other prisoners were subjected, and this could, perhaps, have tipped him over the edge, but he was also a long-term hunger striker, and may, therefore, have been in such a weakened state at the time of his death that a round of particularly aggressive questioning may have been enough to kill him.

In addition, the deaths of the three men on June 9, 2006 — all long-term hunger strikers, like Abdul Rahman al-Amri — have long been contentious, and became more so in January this year when, in a compelling article in Harper’s Magazine, Scott Horton drew on eye-witness accounts by former soldiers, including Staff Sgt. Joe Hickman, to paint a vivid and genuinely disturbing picture of how the alleged suicides of the three men in question — Salah Ahmed al-Salami, Mani Shaman al-Utaybi and Yasser Talal al-Zahrani — were announced shortly after a vehicle had returned from a secret prison outside the prison’s main perimeter fence, where prisoners were reportedly tortured, and how there was, according to the soldiers, an official cover-up on an alarming scale.

I’ll be returning to Staff Sgt. Joe Hickman’s story in the near future, but in the meantime I want to shift the focus onto Mohammed al-Hanashi, to mark the first anniversary of his death, to ask why questions raised at the time have not been answered, and to bring readers up to date on further questions asked in the last year by the author and journalist Naomi Wolf and the psychologist and blogger Jeff Kaye.

Shortly after his death, the released British resident Binyam Mohamed, who knew al-Hanashi in Guantánamo, provided an explanation of the circumstances of his death that was deeply shocking. In an article for the Miami Herald, he stated that he and al-Hanashi, who, at the time, weighed just 104 pounds (and at one point had weighed just 86 pounds), had both been on a hunger strike at the start of 2009, which had involved them being force-fed daily, strapped to restraint chairs while tubes were pushed up their noses and into their stomachs.

The man described by Binyam Mohamed was someone who stood up to the unjust regime at Guantánamo and “was always being put into segregation because of his determined insistence in pointing out the realities of what had happened to us all.” Mohamed continued:

The fact is, US authorities didn’t like him talking about words and practices they were only too familiar with: kidnap, rendition, torture, degradation, false imprisonment and injustice. But, while [al-Hanashi] opposed the policies and treatment in Guantánamo, he didn’t have problems with the guards. He was always very sociable and tried to help resolve issues between the guards and prisoners. He was patient and encouraged others to be the same. He never viewed suicide as a means to end his despair.

However, as Binyam Mohamed explained, when the officer in charge of Camp 5 (a maximum-security block) sought out a volunteer “to represent the prisoners on camp issues such as hunger strikes and other contentious issues,” al-Hanashi agreed. On January 17, 2009, he was taken to meet with the Joint Task Force commander, Adm. David Thomas, and the Joint Detention Group commander, Col. Bruce Vargo, but he never returned to his cell. “[T]wo weeks later,” Mohamed wrote, “we learned that he was moved to what we called the ‘psych’ unit — the behavioral-health unit (BHU).” He added:

There has yet to be any explanation as to why he was sent there or even what was the cause of death. The BHU was built as a secure unit to prevent, among other things, potential suicide attempts. Everything that someone could use to hurt himself has been removed from the cell, and a guard watches each prisoner 24 hours a day, in person and on videotape. In light of this, I am amazed that the US government has the audacity to describe [al-Hanashi’s] death categorically as an “apparent suicide.”

Instead, Binyam Mohamed explained that he thought al-Hanashi’s death was “a murder, or unlawful killing, whichever way you look at it,” and wondered whether “he was killed by US personnel — intentionally or otherwise” or whether his long years of hunger striking “led to some type of organ failure that caused his death.”

Last August, following up on the story, the author and journalist Naomi Wolf, who had been present at Guantánamo on the day al-Hanashi died (as part of a group of journalists covering pre-trial hearings in the trial by military commission of Omar Khadr), revealed that she had been deeply troubled by his death, and the “terse announcement” by the press office of his “apparent suicide.”

Her unease heightened when, on her trip back to the States, she “happened to be seated next to a military physician who had been flown in to do the autopsy on al-Hanashi.” “When would there be an investigation of the death?” she asked, receiving the reply, “That was the investigation.” As she described it, “The military had investigated the military.” She added:

This “apparent suicide” seemed immediately suspicious to me. I had just toured those cells: it is literally impossible to kill yourself in them. Their interiors resemble the inside of a smooth plastic jar; there are no hard edges; hooks fold down; there is no bedding that one can use to strangle oneself. Can you bang your head against the wall until you die, theoretically, I asked the doctor? “They check on prisoners every three minutes,” he said. You’d have to be fast.

Wolf also noted that the story “smelled even worse after a bit of digging.” After discovering that al-Hanashi had volunteered to represent the prisoners in Camp 5, she noted that this would have meant that he “knew which prisoners had claimed to have been tortured or abused, and by whom.” She also raised doubts about whether it was possible for a prisoner to kill themselves in the psychiatric ward, asking Cortney Busch of Reprieve, the London-based legal action charity whose lawyers represent dozens of Guantánamo prisoners, who explained, as Binyam Mohamed had, that “there is video running on prisoners in the psychiatric ward at all times, and there is a guard posted there continually, too.”

Shorn of these options, Wolf noted that al-Hanashi could have been killed during the force-feeding process, reflecting on “how easy it would be to do away with a troublesome prisoner being force-fed by merely adjusting the calorie level. If it is too low, the prisoner will starve, but too high a level can also kill, since deliberate liquid overfeeding by tube, to which Guantánamo prisoners have reported being subjected, causes vomiting, diarrhea, and deadly dehydration that can stop one’s heart.”

In an attempt to discover exactly what happened to Mohammed al-Hanashi, Wolf spent several months putting pressure on Lt. Cmdr. Brook DeWalt, the head spokesman for the Guantánamo press office, but never received a satisfactory answer, even though she pointed out that “[a]n investigation by the military of the death of its own prisoners violates the Geneva Conventions, which demand that illness, transfer, and death of prisoners be registered independently with a neutral authority (such as the ICRC), and that deaths be investigated independently.” As she explained, “If governments let no outside entity investigate the circumstances of such deaths, what will keep them from ‘disappearing’ whomever they take into custody, for whatever reason?”

In Yemen, where al-Hanashi’s body was repatriated, the government “announced only what the US had — that al-Hanashi had died from ‘asphyxiation.’” Wolf added, “When I noted to DeWalt that self-strangulation was impossible, he said he would get back to me when the inquiry — now including a Naval criminal investigation — was completed.”

Wolf never heard back from DeWalt, but in November Jeff Kaye took up the story. Although he noted that self-strangulation was “rare,” but “possible,” he had other reasons for doubting the official story. The first is that al-Hanashi, who was seized in northern Afghanistan in November 2001, survived a massacre in a fort in Mazar-e-Sharif and subsequent imprisonment in a brutal Northern Alliance jail in Sheberghan, where he would have met survivors of another massacre, involving mass asphyxiation in containers, and may, therefore, have “hear[d] tales of US Special Operations soldiers or officers involved.”

The second, which drew on my work, involves the fact that, in his tribunal at Guantánamo, the Pentagon inadvertently revealed that a false allegation made against him — regarding his presence in Afghanistan before he was even in the country — had been made by Ahmed Khalfan Ghailani, a “high-value detainee,” held in secret CIA prisons for over two years before his transfer to Guantánamo in September 2006. In every other instance, the names of the “high-value detainees” were redacted from the transcripts, but in al-Hanashi’s case, Ghailani’s name slipped through the censor’s net.

Last May, Ghailani was transferred to New York to face a federal court trial for his alleged involvement in the 1998 African embassy bombings, and, as Jeff Kaye pointed out, al-Hanashi’s “possible testimony at a trial in New York City, establishing that Ghailani’s admissions were false, and likely coerced by torture, may have been a hindrance to a government bent on convicting the supposed bomber.”

Whether it was his knowledge of massacres in Afghanistan, his eligibility as a damaging witness in the trial of Ahmed Khalfan Ghailani, or his knowledge of dark secrets in Guantánamo, it seems probable that, one way or another, Mohammed al-Hanashi knew too much, and what makes this suspicion even more alarming is the fact that he died just weeks after he was finally assigned a lawyer.

A review of the cases of all the alleged suicides reveals not only that all the men were long-term hunger strikers, but also that none of them had spoken to attorneys before their deaths, and that therefore any incriminating knowledge they may have had went to their graves with them. This may only be coincidental, but it is worth noting that, after the deaths in June 2006, the Pentagon initially reported that none of the three men had legal representation, but that, within days, officials were obliged to acknowledge that, in fact, two of the men did have legal representation.

In the case of the first man, Salah Ahmed al-Salami (also identified as Ali Abdullah Ahmed) it was also revealed that, at the time of his death, his lawyers had not been cleared to visit him, and in the case of the second man, Mani al-Utaybi, his lawyers had not been able to see him. Speaking at the time, his legal team complained that they had waited over nine months for the Pentagon to grant them clearance to see their client, and that, in the meantime, they had not been allowed to correspond with him at all, because of confusion over the spelling of his name. They also explained that, during a visit to Guantánamo just weeks before his death, they had been told that he wouldn’t see them, and that they had, therefore, been unable to tell him that he had been cleared for release.

This has always struck me as a particularly bleak commentary on Guantánamo — that no one told Mani al-Uyaybi that he had been cleared for release before his death — but in the bigger picture of the five unexplained deaths the most important thing is for these men not to be forgotten, and for calls to be made — loudly and regularly — for an independent inquiry into how they died.

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 January 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. Cross-posted on Campaign for Liberty, Prison Planet, Zakiraah, Truth is Contagious and Uruknet.

For a sequence of articles dealing with the hunger strikes and deaths at Guantánamo, see Suicide at Guantánamo: the story of Abdul Rahman al-Amri (May 2007), Suicide at Guantánamo: a response to the US military’s allegations that Abdul Rahman al-Amri was a member of al-Qaeda (May 2007), Shaker Aamer, A South London Man in Guantánamo: The Children Speak (July 2007), Guantánamo: al-Jazeera cameraman Sami al-Haj fears that he will die (September 2007), The long suffering of Mohammed al-Amin, a Mauritanian teenager sent home from Guantánamo (October 2007), Guantánamo suicides: so who’s telling the truth? (October 2007), Innocents and Foot Soldiers: The Stories of the 14 Saudis Just Released From Guantánamo (Yousef al-Shehri and Murtadha Makram) (November 2007), A letter from Guantánamo (by Al-Jazeera cameraman Sami al-Haj) (January 2008), A Chinese Muslim’s desperate plea from Guantánamo (March 2008), Sami al-Haj: the banned torture pictures of a journalist in Guantánamo (April 2008), The forgotten anniversary of a Guantánamo suicide (May 2008), Binyam Mohamed embarks on hunger strike to protest Guantánamo charges (June 2008), Second anniversary of triple suicide at Guantánamo (June 2008), Guantánamo Suicide Report: Truth or Travesty? (August 2008), The Pentagon Can’t Count: 22 Juveniles Held at Guantánamo (November 2008), Seven Years Of Guantánamo, And A Call For Justice At Bagram (January 2009), British torture victim Binyam Mohamed to be released from Guantánamo (January 2009), Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), Obama’s “Humane” Guantánamo Is A Bitter Joke (February 2009), Forgotten in Guantánamo: British resident Shaker Aamer (March 2009), Guantánamo’s Long-Term Hunger Striker Should Be Sent Home (March 2009), Guantánamo, Bagram and the “Dark Prison”: Binyam Mohamed talks to Moazzam Begg (March 2009), Forgotten: The Second Anniversary Of A Guantánamo Suicide (May 2009), Yemeni Prisoner Muhammad Salih Dies At Guantánamo (June 2009), Death At Guantánamo Hovers Over Obama’s Middle East Visit (June 2009), Guantánamo’s Hidden History: Shocking Statistics of Starvation (June 2009), Binyam Mohamed: Was Muhammad Salih’s Death In Guantánamo Suicide? (June 2009), Torture In Guantánamo: The Force-feeding Of Hunger Strikers (for ACLU, June 2009), Murders at Guantánamo: Scott Horton of Harper’s Exposes the Truth about the 2006 “Suicides” (January 2010), Torture in Afghanistan and Guantánamo: Shaker Aamer’s Lawyers Speak (February 2010), The Third Anniversary of a Death in Guantánamo (May 2010), Omar Deghayes and Terry Holdbrooks Discuss Guantánamo (Part Three): Deaths at the Prison (June 2010).

Also see the following online chapters of The Guantánamo Files: Website Extras 2 (Ahmed Kuman, Mohammed Haidel), Website Extras 3 (Abdullah al-Yafi, Abdul Rahman Shalabi), Website Extras 4 (Bakri al-Samiri, Murtadha Makram), Website Extras 5 (Ali Mohsen Salih, Ali Yahya al-Raimi, Abu Bakr Alahdal, Tarek Baada, Abdul al-Razzaq Salih).

Beyond the easy targets — the hated ID card scheme, for example — the new government has reacted well to two early tests of its promise to tackle Labour’s record on terrorism. This was a significant target for the Liberal Democrats (who actively opposed the use of secret evidence and control orders, and called for an inquiry into British complicity in torture at their conference last autumn), and this latter topic was also a personal obsession of William Hague’s, even if the party as a whole — with a few other notable exceptions (David Davis and Andrew Tyrie, for example, and Baroness Neville-Jones in the Lords) — supported Labour’s domestic anti-terror agenda rather enthusiastically.

The first test: not overreacting to a difficult decision regarding the deportation of two terror suspects

On Tuesday, the government passed its first test, responding with admirable restraint to the thorny problem of a judge refusing to allow the deportation of two Pakistani terror suspects, because they face the risk of torture in Pakistan.

On the campaign trail, David Cameron had made repealing the Human Rights Act one of his major manifesto pledges (and replacing it with a BNP-sounding British Bill of Rights), but when every misguided xenophobe with access to a newspaper column (or a comments page) began wailing about repealing the HRA immediately, the government refused to be drawn.

Home Secretary Theresa May promised a commission to investigate the HRA, while Nick Clegg warned that the Act was “an absolute constitutional cornerstone” and a “fundamental guarantor of rights to the British citizen,” adding, bluntly, “Any government would tamper with it at its peril.” Crucially, however, the government did not threaten to appeal the decision, seemed content to keep the men in question under surveillance, and no doubt quietly accepted that bashing the HRA as an election tool was not the same as having to deal with the real issues.

These, to be clear, are that the legally binding European Convention on Human Rights (PDF) and the UN Convention Against Torture are the documents that prohibit any involvement whatsoever with torture (including sending foreign nationals back to countries where they face the risk of torture) and the HRA (which largely attempted, with some success, to keep ECHR issues in-house rather than having cases perpetually being referred to Strasbourg) is not to blame.

As a result, although we can no doubt expect the government to attempt to follow Labour’s dubious policy of establishing “memoranda of understanding” with human rights-abusing regimes (which purport to guarantee the humane treatment of those returned, even though that is scarcely credible), we will also, hopefully, see real movement (as signalled on Sunday) regarding putting terror suspects on trial, by allowing the use of intercept evidence in regular courts.

This is what numerous legal experts have been advising for years (PDF), and it is clearly time that we joined the rest of the world in finding a way to do this while protecting intelligence agents and sources, rather than continuing to rely on the use of secret evidence, on special advocates who represent the accused in closed sessions, but are unable to tell their clients anything that they have heard, and on the whims of judges in a special terror court.

The second test: a judicial inquiry into British complicity in torture

On Thursday, the government passed its second test, when William Hague, evidently preempting attempts by FCO and intelligence officials to cajole him into silence, announced that he was ordering a judicial inquiry into British complicity in torture and rendition since September 11, 2001. As the Guardian explained, his remarks “appear to have caught the Foreign Office by surprise, as no details were yet available on how the inquiry will be conducted, its terms of reference or when it will start work.” In a follow-up article, also in the Guardian, Ian Cobain laid out what might be hoped for from the inquiry. “It is expected to expose not only details of the activities of the security and intelligence officials alleged to have colluded in torture since 9/11,” he wrote, “but also the identities of the senior figures in government who authorised those activities.”

As was revealed last June, any detailed inquiry will be required to follow a chain to the very top of government, because, as the Guardian explained at the time, 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.”

The Guardian added that Britain’s post-9/11 policy “offered ­guidance to MI5 and MI6 officers ­questioning detainees in Afghanistan whom they knew were being mistreated by the US military,” providing intelligence agents with written instructions that they could not “be seen to condone” torture and must not “engage in any activity yourself that involves inhumane or degrading treatment of prisoners,” although “they were also told they were not under any obligation to intervene to prevent detainees from being mistreated.” As stated in the policy, “Given that they are not within our custody or control, the law does not require you to intervene to prevent this.”

The Guardian proceeded to explain that the policy, which was “set out in written instructions sent to MI5 and MI6 officers in January 2002,” also informed them that they “might consider complaining to US officials about the mistreatment of detainees ‘if circumstances allow,’” and noted that Tony Blair had “indicated his awareness of the existence of the policy” in 2004, shortly after the Abu Ghraib scandal broke.

The exact form the inquiry will take has not yet been established. William Hague stated only, “We will be setting out in the not-too-distant future what we are going to do about allegations that have been made into complicity in torture. We will make a full announcement that we are working on now. We want a judge-led inquiry.” It is, for example, not known how much of the evidence will be presented publicly. The Daily Mail suggested that “Much of the evidence will be taken behind closed doors and it is is not clear whether a full report will be published — though a summary is expected to be made public.”

However, even with these limitations, an inquiry that focuses, as anticipated, on cases including that of Binyam Mohamed would be extraordinary, given the extent to which the Labour government tried to hide its knowledge of the British resident’s torture in Pakistan, as well as the persistent denials by senior officials, and by the heads of MI5 and MI6, that any collusion in torture took place.

Set against this are the grave concerns and criticism expressed by two High Court judges, Lord Justice Thomas and Mr. Justice Lloyd Jones, who chastised the government for complicity in “wrongdoing” after a judicial review in August 2008, and then spent 18 months arguing that the public had the right to know what was contained in 42 documents sent to the British by their counterparts in US intelligence, and the criticism levelled at MI5 in February this year by Lord Neuberger, the Master of the Rolls, in a Court of Appeal hearing that finally led to the release of a summary of those documents. On that occasion, Lord Neuberger accused MI5 of having “deliberately misled parliament.”

There is much more to Binyam Mohamed’s case alone, of course, especially regarding the extent to which the government knew about his imprisonment for 18 months in Morocco — and, as has been alleged, sent both a spy and an informer to talk to him — as well as British complicity in the rendition and torture of other men who ended up in Guantanamo,  including Shaker Aamer, the British resident who is still held, and Bisher al-Rawi and Jamil El-Banna, who were seized by the CIA in the Gambia on a business trip, after an exchange of intelligence between the US and the UK.

There are also many other cases, primarily in Pakistan, but also in other countries, including Bangladesh, Egypt, the United Arab Emirates, that have surfaced over the last few years, in which the torture of British citizens appears to have been very deliberately sub-contracted to foreign torturers. Ian Cobain exposed many of these stories for the first time, I have also discussed them (see, for example, here), and they have also been examined by Human Rights Watch and by Cageprisoners, in a report, “Fabricating Terrorism II” (PDF) that was published in April 2009.

Another champion of accountability, David Davis MP, played a major role in exposing British complicity in torture, when, last July, he used the protection of parliamentary privilege to tell the House of Commons how, in 2006, the government and the security services allowed Rangzieb Ahmed, a British citizen, to travel to Pakistan, where they “suggested” to the Inter Services Intelligence Directorate (ISI), Pakistan’s most notorious intelligence agency, that he should be arrested. As he explained, Pakistani intelligence would have been “aware that ‘suggesting’ arrest was equivalent to ‘suggesting’ torture.” Ahmed was later returned to the UK to face a trial, at which evidence of his torture — including having three of his fingernails ripped out — was concealed, and Davis was not only appalled by this particular cover-up, but also told the House, bluntly, “I cannot imagine a more obvious case of the outsourcing of torture.”

For now, those of us who have been calling for an inquiry can only hope that its revelations will not be drowned in the secrecy that was such a hallmark of the Labour government, and that, as Philippe Sands urged yesterday, it will be “deep and broad and as open as possible.” After eight years of largely hidden complicity in the Bush administration’s “War on Terror,” and the recent and compelling evidence of Britain’s own policy of outsourcing torture, we need answers, and we need them to be both frank and clear.

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

Cross-posted on The Public Record, Eurasia Review and Uruknet.

Now that we have a new government — involving an unprecedented coalition between the Tories and the Liberal Democrats — the ongoing UK tour of the new documentary film, “Outside the Law: Stories from Guantánamo” (directed by filmmaker Polly Nash and myself), continues with renewed purpose. Throughout the election period, the screenings that took place were dogged with a sense of indecision that has now been swept away — and I’m relieved that former prisoner Omar Deghayes and myself, who are taking part in Q&A sessions following the majority of the screenings, will now be able to focus once more on asking the audiences to take action for Shaker Aamer, the last British resident in Guantánamo (whose story features in the film).

Audiences — and readers of this article — can do this by writing to the new foreign secretary, William Hague (and also to David Cameron and Nick Clegg) to ask the government to do all in its power to secure his return from Guantánamo, to be reunited with his British wife and children as swiftly as possible.

I’ll shortly be drafting a letter to William Hague, which I’ll post here, and this — and a letter to MPs (which I made available on Friday, and which also includes questions about the use of secret evidence in UK courts, about control orders, and about British complicity in torture) — will be handed out at screenings, to encourage audiences to get involved, and, crucially, to demonstrate that there is action that can be taken. Omar is a living example of the success of political campaigning, as the high-profile campaign mounted in Brighton to secure his release undoubtedly played a part in securing his freedom.

Shaker Aamer was cleared for release from Guantánamo over three years ago, but remains held despite the Labour government’s claims that it persistently pushed for his release. His lawyers, however, have long wondered if this is strictly true, given that Shaker knows so much about the workings of Guantánamo (having been the foremost advocate of the prisoners’ rights within the prison) that, when he is finally released, his revelations may well be deeply embarrassing for both the British and the American governments.

With a change in leadership in the UK, now is a vital time for those who support Shaker’s return to renew pressure on the government, and to point out, if necessary, that his revelations — not only about Guantánamo, but also about conditions in the US prisons in Afghanistan, where prisoners were held before Guantánamo, and the involvement of British agents in interrogations in Afghanistan — concern the Labour government at the time, and do not reflect directly on the Conservative Party.

As I explained in a recent article, the Conservative Party has a poor record when it comes to supporting human rights while countering terrorism in the UK, and also has a poor record on calling for the closure of Guantánamo (I Googled in vain for a clear message). However, William Hague has made encouraging noises over the years. Back in 2006, he told a meeting in the House of Commons organized by Human Rights Watch, “Reports of prisoner abuse by British and American troops — however isolated — and accounts, accurate or not, of the mistreatment of detainees at Guantánamo and extraordinary rendition flights leading to the torture of suspects, have led to a critical erosion in our moral authority. In standing up for the rule of law, we must be careful not to employ methods that undermine it.”

Moreover, Hague has, on at least one occasion, addressed the return of Shaker Aamer from Guantánamo. In March 2009, he submitted a written request in the House of Commons in February 2009, “To ask the Secretary of State for Foreign and Commonwealth Affairs, whether US officials have acceded to the request to return Mr Shaker Aamer to the UK; and if he will make a statement.”

In addition, he has maintained his opposition to British complicity in torture — and calls for accountability for those involved — telling the House of Commons in February, after the Court of Appeal ordered David Miliband to release information regarding the torture of British resident Binyam Mohamed, that “we [the Conservative Party] have consistently argued for full investigation of all credible allegations of UK complicity in torture, and for the Government to find a way in this particular case to balance the needs of national security with the need for justice and accountability in our democratic society.”

Hague may well find his principled stance evaporating now he is in office, but his record in opposition means that campaigners for Shaker Aamer’s return — and for accountability for British complicity in torture — at least have some leverage. Listed below are five new screenings of “Outside the Law: Stories from Guantánamo,” at which these topics and others will be discussed. I’ve also added this information to the dedicated page for the UK tour, to be updated as further screenings are added, and please also note that all screenings are free. Please feel free to publicize them, and I hope to see some of you at one or other event.

Friday May 21, 7.30 pm: Film screening – “Outside the Law: Stories from Guantánamo.” Followed by Q&A.
Christ Church College, Blue Boar Lecture Theatre, the University of Oxford, St. Aldates, Oxford, OX1 1DP.
With Omar Deghayes, Andy Worthington and Polly Nash.
This screening is organized by the Oxford University Amnesty International group, and a Facebook page is here. For further information, please contact Amnesty Oxford.

Thursday May 27, 7 pm: Film screening – “Outside the Law: Stories from Guantánamo.” Followed by Q&A.
The Broca, 4 Coulgate Street, Brockley, London, SE4 2RW.
With Andy Worthington.
This screening is organized by The Broca as a prelude to the annual Brockley Max arts festival. On Tuesday June 1, at 7 pm, Andy will also present a screening of “Operation Solstice,” a documentary about The Battle of the Beanfield, on the 25th anniversary of this often-overlooked confrontation between travellers/political activists and the State (under Margaret Thatcher). For further information, please contact Andy, or, for the Broca, by email here.

Friday May 28, 6.30 pm: Film screening – “Outside the Law: Stories from Guantánamo.” Followed by Q&A.
Arts A1 Lecture Theatre, The University of Sussex, Falmer, Brighton, BN1 9RF.
With Omar Deghayes and Andy Worthington.
This screening is organized by the University of Sussex Amnesty International group. For a map of the campus, showing the Arts A1 Lecture Theatre (No. 22 on map), see here. For other maps, see here, and for further information, please contact Michael Fisher.

Saturday May 29, 2 pm: Film screening – “Outside the Law: Stories from Guantánamo.” Followed by Q&A.
Under the Bridge music studio, 7 Trafalgar Arches, Brighton, BN1 4FQ.
With Omar Deghayes and Andy Worthington.
This screening is organized by Under the Bridge (see the website here, and also see here for “Radio Free Brighton,” housed in the studios). For a map, see here (the studios are underneath the main railway station), and for further information, please contact Jackie Chase on 07799 564620.

Wednesday June 2, 6 pm: Film screening – “Outside the Law: Stories from Guantánamo.” Followed by Q&A.
Birkbeck College, University of London, Malet Street, London, WC1E 7HX.
With Omar Deghayes, Andy Worthington and Polly Nash.
This screening is organized by the British Society for Middle Eastern Studies. Please contact Barbara Zollner for further information. Also see MeetUp pages here and here.

About the film

“Outside the Law: Stories from Guantánamo” is a new documentary film, directed by Polly Nash and Andy Worthington, telling the story of Guantánamo (and 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, in his first major interview, Omar Deghayes, who was released in December 2007), lawyers for the prisoners (Clive Stafford Smith in the UK and Tom Wilner in the US), and journalist and author Andy Worthington, and also includes appearances from Guantánamo’s former Muslim chaplain James Yee, Shakeel Begg, a London-based Imam, and the British human rights lawyer Gareth Peirce.

Focusing on the stories of Shaker Aamer, 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.

Recent feedback

““Outside the Law” is essential viewing for anyone interested in Guantánamo and other prisons. The film explores what happens when a nation with a reputation for morality and justice acts out of impulse and fear. To my mind, Andy Worthington is a quintessential force for all things related to the journalism of GTMO and its inhabitants. As a military lawyer for Fayiz al-Kandari, I am constantly reminded that GTMO is ongoing and that people still have an opportunity to make history today by becoming involved. “Outside the Law” is a fantastic entry point into the arena that is GTMO.”
Lt. Col. Barry Wingard, attorney for Guantánamo prisoner Fayiz al-Kandari

“I thought the film was absolutely brilliant and the most powerful, moving and hard-hitting piece I have seen at the cinema. I admire and congratulate you for your vital work, pioneering the truth and demanding that people sit up and take notice of the outrageous human rights injustices perpetrated against detainees at Guantánamo and other prisons.”
Harriet Wong, Medical Foundation for Care of Victims of Torture

“[T]hought-provoking, harrowing, emotional to watch, touching and politically powerful.”
Harpymarx, blogger

“Last Saturday I went to see Polly Nash and Andy Worthington’s harrowing documentary, “Outside the Law: Stories from Guantánamo” at London’s BFI. The film knits together narratives so heart-wrenching I half wish I had not heard them. Yet the camaraderie between the detainees and occasional humorous anecdotes … provide a glimpse into the wit, courage and normalcy of the men we are encouraged to perceive as monsters.”
Sarah Gillespie, singer/songwriter

“The film was great — not because I was in it, but because it told the legal and human story of Guantánamo more clearly than anything I have seen.”
Tom Wilner, US attorney who represented the Guantánamo prisoners before the US Supreme Court

“The film was fantastic! It has the unique ability of humanizing those who were detained at Guantánamo like no other I have seen.”
Sari Gelzer, Truthout

“Engaging and moving, and personal. The first [film] to really take you through the lives of the men from their own eyes.”
Debra Sweet, The World Can’t Wait

“I am part of a community of folks from the US who attempted to visit the Guantánamo prison in December 2005, and ended up fasting for a number of days outside the gates. We went then, and we continue our work now, because we heard the cries for justice from within the prison walls. As we gathered tonight as a community, we watched “Outside the Law,” and by the end, we all sat silent, many with tears in our eyes and on our faces. I have so much I’d like to say, but for now I wanted to write a quick note to say how grateful we are that you are out, and that you are speaking out with such profound humanity. I am only sorry what we can do is so little, and that so many remain in the prison.”
Matt Daloisio, Witness Against Torture

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

“Outside the Law: Stories from Guantánamo” is a Spectacle Production (74 minutes, 2009), and copies of the DVD are now available. As featured on Democracy Now!, ABC News and Truthout. See here for videos of the Q&A session (with Moazzam Begg, Omar Deghayes, Andy Worthington and Polly Nash) that followed the launch of the film in London on October 21, 2009, and see here for a short trailer.

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