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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

*****

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

The men America freed

Asif Iqbal, 40, of Tipton, West Midlands

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

Jamil el-Banna, 59, a Palestinian from Jordan

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

Jamal al-Harith, 45, from Manchester

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

Feroz Ali Abbasi, 31, from Croydon, south London

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

Bisher al-Rawi, 44, Iraqi-born

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

Shafiq Rasul, 44, of Tipton, West Midlands

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

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

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

Martin Mubanga, 38, from Wembley, north London

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

Moazzam Begg, 43, from Birmingham

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

Tarek Dergoul, 34, from London

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

Omar Deghayes, 42, from Brighton

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

Richard Dean Belmar, 32, from London

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

Binyam Mohamed, 33

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

Sameur Abdenour [Abdulnour Sameur], 38, from London

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

… and one they still hold

Shaker Aamer, 43, Saudi-born

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

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

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here — or here for the US), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

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

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

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

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

The Supreme Court fails to tackle torture in the past

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

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

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

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

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

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

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

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

They also stated:

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

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

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

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

The Supreme Court fails to tackle torture in the future

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

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

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

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

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

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

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here — or here for the US), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

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

How the financial settlement arose

Seven former prisoners first sued the British government and the security services last year, seeking damages for their role in unlawful acts and conspiracy, through their involvement in, or their failure to stop, their detention and ill-treatment in US custody (or US supervision in other countries), and, in some cases, their “extraordinary rendition” to secret prisons. These men were Moazzam Begg, Binyam Mohamed, Omar Deghayes, Bisher al-Rawi, Jamil El-Banna, Martin Mubanga and Richard Belmar.

When the government’s preferred route out of this tricky situation — seeking and securing judicial approval for MI5, MI6 and the police to be able to withhold evidence from defendants and their lawyers on the basis of national security — was overturned by the Court of Appeal in May this year, it was obvious that their only escape route would be to negotiate an out of court settlement with the seven men. In their ruling, the judges in the Court of Appeal — including Lord Neuberger, the Master of ther Rolls — said they were obliged to “take a stand” against secrecy that would undermine the “most fundamental principles of common law,” and Lord Neuberger pointed out that “a litigant’s right to know the case against him and to know the reasons why he has lost or won is fundamental to the notion of a fair trial.”

The government moved swiftly. On July 6, David Cameron announced that there would be a judicial inquiry into British complicity in torture, telling the House of Commons that he had asked Sir Peter Gibson, a former appeal court judge who monitors the activities of the intelligence agencies, 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.” Cameron noted 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.”

Crucially, David Cameron also made it clear that the inquiry could not begin “until civil claims have been resolved through mediation or settled with compensation,” as the Guardian explained, and until Metropolitan Police investigations into the activities of MI5 and MI6 agents concluded. These concern Binyam Mohamed (returned to the UK in February 2009), who was subjected to two years of torture (with British knowledge) in Pakistan, Morocco and Afghanistan, before his transfer to Guantánamo in September 2004, and Shaker Aamer, married with a British wife and four British children, who is still held in Guantánamo, despite being cleared for release in 2007. Originally from Saudi Arabia, Shaker had traveled to Afghanistan in June 2001 with former prisoner Moazzam Begg and their families to establish a girls’ school and some well-digging projects, but was seized by bounty hunters after the US-led invasion of Afghanistan and subsequently sold to US forces.

The need for the government to seek an out of court settlement grew even more pressing just a week after the announcement of the inquiry, when ministers were unable to prevent the first release of documents as a result of the ongoing court case. Less than a thousand in number, out of 500,000 documents being reviewed by lawyers and intelligence personnel, these documents neverthless contained startling new discoveries: that foreign secretary Jack Straw had been content for British prisoners to be taken to Guantánamo in January 2002, when the prison opened, and was only concerned that British agents would have time to interrogate them in Afghanistan before the Americans rendered them to its lawless enclave in Cuba; and that Prime Minister Tony Blair had interfered to prevent the Foreign and Commonwealth Office from granting consular access to Martin Mubanga, a British citizen seized in Zambia, who, as a result, was also sent to Guantánamo.

In the wake of this release of documents, the government stepped up its planning for the judicial inquiry, actively engaging in negotiations with former prisoners and their lawyers, which, after four months of detailed discussions, led to the settlements announced on Monday.

Why the financial settlement is an acknowledgment of guilt

However, although the Prime Minister’s spokesman told reporters on Tuesday morning, “We are not admitting culpability,” and proceeded to follow the government line that “We were in a situation where we were facing years of litigation, the cost of which would have been tens of millions of pounds,” and that “We had to draw a line under the past and let [the security services] get on with the job that they have to do,” even a cursory glance at what has taken place over the last four months reveals that Downing Street — and Kenneth Clarke, who repeated the message in the House of Commons — are not being entirely honest.

When the story broke on Monday night, the only ex-prisoners mentioned were the seven men involved in the damages claim, but by Tuesday it was clear that settlements had been made with 16 men in total — all of the British citizens and residents returned between 2004 and 2009, and Shaker Aamer, despite the fact that he is still held in Guantánamo.

If, as the government claims, the aim of the settlements is to bring to an end the court case that was proving so costly and so dangerous to the security services (and former government ministers), then there would be no need to include all these other men, who are not actually engaged in litigation.

Two conclusions can be drawn from this, and neither reflects well on the government. The first is that the settlements are indeed an acknowledgement of guilt, and the second is that the government is trying to make sure that there are no loose ends — or loose cannons — around for when the inquiry begins its work. This suggests that the government is hoping to ensure that the inquiry will be able to guarantee that enough damaging material as possible is safely removed from public scrutiny, so that its real business — going through the motions, leading to the odd slapped wrist — will not be able to be challenged.

Personally, I doubt that such a plan will be successful, as so much information relating to British complicity in torture is already in the public domain, and any attempt at a whitewash will be met with fierce resistance. Moreover, although the ex-prisoners have accepted a settlement to drop their civil claim against the government, they have not, as Kenneth Clarke admitted in Parliament, “withdrawn their allegations,” and it remains possible, therefore, that one day those who facilitated or turned a blind eye to their torture and abuse might still face prosecution.

As it is, all the former prisoners have made it clear in the last few days that they intend to make their allegations, with evidence, directly to Gibson when the inquiry begins, and Moazzam Begg has explained that Cageprisoners will be submitting its findings from its report, “Fabricating Terrorism II,” which highlights the cases of 29 individuals who allege the complicity of MI5 and/or MI6 in their abuse, including one pre-9/11 case directly linked to Moazzam Begg.

Why the government has, to date, failed Shaker Aamer — and how the former prisoners made him central to their concerns

Just as significant as the government’s little-perceived acknowedgment of guilt is the unresolved question of what will happen to Shaker Aamer.

It is extraordinary enough to realize that he is being offered a settlement while he is still held in Guantánamo, but it is even more astonishing that, until the negotiations began, the government was unaware that all the former prisoners would tell ministers that they were unwilling to enter negotiations without confirmation that any deal would also include Shaker’s return to the UK.

The government apparently failed to understand that the bonds between Guantánamo prisoners run particularly deep, after their shared experiences, and that they all have great feelings of responsibility towards those left behind in Guantánamo — and especially towards Shaker, an intelligent, articulate and charismatic man, who, since his capture almost nine years ago, has fought tenaciously for the prisoners’ rights.

Ministers were duly taken aback when, one after another, the former prisoners explained that their intention had never been to seek financial compensation. They were, they said, motivated by a quest for justice, a desire to make sure that nothing that happened to them would be allowed to happen again, and an unassailable conviction that the entire process was useless while Shaker Aamer remained in Guantánamo.

Rather disturbingly, ministers also, apparently, failed to realize how little civil servants had done for the last few years to secure Shaker Aamer’s return from Guantánamo, and in one meeting there was a shocked silence from minsters, lawyers and the former prisoners when they admitted that they had not made a welfare visit to Shaker for five years.

They also, it seems, failed to realize how absurd it was to offer Shaker a settlement while he is still held in Guantánamo, and it also transpired that ministers had not been fully briefed about the fact that no inquiry can possibly proceed without him. This is not only because Shaker is the subject of one of the Metropolitan Police investigations, but also because the reason that investigation arose in the first place is because a court accepted, last December, his allegations that British agents had been present in a cell in the US prison at Kandahar in December 2001 when he was subjected to horrible abuse.

Although the British government, under Gordon Brown, asked for Shaker to be returned to the UK with four other British residents in August 2007, there has been no progress since that time, even though the other four men were safely returned in 2007 and 2009.

What Shaker Aamer knows

When prompted, the US goverment has claimed that it still has “security concerns” about Shaker, although these could obviously be dealt with by the British government if the political will existed to secure his return. Very possibly, this has been an excuse — mutually beneficial to both the US and UK governments — to put off having to deal with both the embarrassment, and with detailed revelations about the treatment of prisoners, which might be more damaging to both governments, when Shaker is eventually released.

The reason for this is that, in his fierce advocacy of rights for the prisoners held in the “War on Terror,” Shaker may know more than any other prisoner about the dark workings of Guantánamo and other prisons in Afghanistan. Soon after his capture he initiated a hunger strike to demand that prisoners be treated humanely, and in Guantánamo he not only supported and advised countless fellow prisoners, and liaised endlessly with the authorities, but also played a pivotal role in briefly bringing to an end a prison-wide hunger strike in the summer of 2005. On that occasion, he and five other influential prisoners were allowed to form a short-lived Prisoners’ Council, in an attempt to persuade the authorities to run the prison according to the Geneva Conventions, but when the authorities suddenly changed their minds and the council was disbanded, Shaker was thrown into solitary confinement, where he stayed for at least two years, on a hunger strike.

Moreover, it was during this period that three prisoners died, on June 9, 2006, and Shaker later told his lawyers that, on that same night, he had been tortured to within an inch of his life. His account added great weight to an article published in January this year, which, drawing on eye-witness accounts by soldiers who were stationed in Guantánamo on that particular night, demolished the authorities’ claim that the three men who died committed suicide, and indicated instead that they had been killed — either deliberately, or as part of a torture session in a secret facility outside Guantánamo that went too far.

Why Shaker Aamer must return to the UK now

According to the Guardian, Shaker “is expected to be allowed to return to the UK soon,” and I can only hope that this is true. As Moazzam Begg explained on Tuesday, “Shaker Aamer must now become a priority for this current government. The compensation paid to the former Guantánamo detainees is a welcome departure from the policies of the previous administration but in order to truly resolve the errors that have been made, Shaker Aamer must be returned back home to his family. We will do everything in our power to help this government achieve their goal of helping his return.”

In the last two days, the pressure for Shaker’s return has increased markedly. Although the Director of Public Prosecutions, Keir Starmer QC, said on Wednesday that the Crown Prosecution Service had advised the Metropolitan Police that, in their ongoing investigation into Binyam Mohamed’s case, there was insufficient evidence to prosecute the MI5 officer at the heart of the investgation (known as Witness B), “for any criminal offence arising from the interview of Binyam Mohamed in Pakistan on 17 May 2002,” Starmer added, “We are unable to release further information at this stage because the wider investigation into other potential criminal conduct arising from allegations made by Mr. Mohamed in interviews with the police is still ongoing.” Significantly, Starmer did not mention the ongoing investigation into the conduct of security service officials in Shaker Aamer’s case, but it is apparent that this particular investigation cannot conclude without Shaker Aamer being present to answer questions.

As a result of this investigation, and also, it should be noted, as a direct consequence of the settlement discussions, the British foreign secretary, William Hague, raised the question of Shaker Aamer’s return to the UK with Hillary Clinton, the US secretary of state, on Wednesday, marking the most high-profile mention of Shaker Aamer by a British government official since August 2007, when Gordon Brown asked for the return of the five remaining British residents.

This was a welcome development, and a clear reflection on the successful pressure exerted on the British government by the former prisoners, but Shaker’s return is not yet a done deal, and in the meantime anyone interested in securing Shaker Aamer’s return should besiege all available parties — David Cameron, William Hague, their local MPs and the US goverment — with demands for his return, pointing out that the Metropolitan Police’s investigation cannot conclude without him, and nor, indeed, can the goverment’s judicial inquiry begin.

Note: As part of Amnesty International’s new campaign for Shaker Aamer, readers can send a postcard to Daniel Fried, Obama’s Special Envoy on Guantánamo, who will hopefully receive many thousands of postcards demanding Shaker’s return (although, to be honest, I would cut the recommended text about the possibility of charging him promptly and giving him a fair trial), and can also write to MPs in the UK, who can be contacted easily and directly via the campaign page here. Also see this page for information about future screenings of “Outside the Law: Stories from Guantánamo,” the documentary film, co-directed by Polly Nash and myself, which features the story of Shaker Aamer — on November 22 in Oxford, on December 10 in Roehampton, on December 11 in Battersea, and on December 15 in Sheffield — and if you’re in London, or able to pay a visit, please also note that the screening on Saturday December 11, at the Battersea Arts Centre, is part of an event entitled, “A Day for Shaker Aamer,” organized by the Save Shaker Aamer Campaign in his home borough of Wandsworth. The day begins at 12 noon, with a demonstration at Ponton Road, Nine Elms, London SW8, the site of the new US embassy. At 12.30 those gathered will march to Battersea Arts Centre for a public meeting, beginning at 2 pm, with speakers including Ken Livingstone, Moazzam Begg, Victoria Brittain, Jeremy Corbyn, Lindsey German, Kate Hudson, Gareth Peirce and Yvonne Ridley, and the film will be shown at 4.30 pm, followed by a Q&A with myself and Omar Deghayes.

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

As published exclusively on Cageprisoners. Cross-posted on The Public Record, The World Can’t Wait and Uruknet.

The amounts to be paid will not be disclosed, but it has already been suggested that one payout will be more than a million pounds – related, no doubt, to the most horrific of all the cases: that of Binyam Mohamed, seized in Pakistan in April 2002, who was subjected to torture for two years in Pakistan, in Morocco and in the CIA’s “Dark Prison” in Kabul. In February this year, the Court of Appeal ordered the government to release documents — whose disclosure had been resisted for 18 months by foreign secretary David Miliband — demonstrating that British agents knew that their US counterparts were subjecting Mohamed to torture in Pakistan,  and, with the Metropolitan Police also investigating MI5′s role in Mohamed’s torture, and the existence of other information that has never been disclosed in court, it is understandable, frankly, that the government would seek to prevent any more dangerous disclosures in Mohamed’s case.

The announcement of the payments will no doubt cause a tsunami of outrage from the right-wing press, who will not be placated by the government’s argument that the continuation of the court case already initiated by these men, which has involved the government hiring at least 80 lawyers to examine half a million documents, would cost many times this amount (possibly as much as 50 million pounds). These critics will also, presumably, not even be swayed by the government’s national securtity argument: that. as the Guardian explained, “it is in the national interest that the cases are not brought to court so as to protect the security services methods from scrutiny.”

It is certainly true that even the limited disclosure of documents in summer, as a result of the court case, was troubling for the establishment. There was, for example, an FCO document from January 10, 2002, the day before Guantánamo opened, entitled, “Afghanistan UK Detainees,” which 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.

However, the most shocking revelations in the documents had more to do with former Prime Minister Tony Blair, who had personally intervened to prevent Martin Mubanga, a British citizen seized in Zambia, from having consular access, and foreign secretary Jack Straw, who, in mid-January 2002, 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.

Nevertheless, the fear that the security services’ activities would be opened up to unparalleled scrutiny — when added to the fear of futher disclosures about government ministers and civil servants — ought to silence the critics, as these revelations are not merely embarrassing, but also suggest involvement with war crimes, for which those found to be complicit could face prosecution. For those wishing to avoid such an outcome, the most sensible approach is the one favoured by David Cameron — proceeding with the judicial inquiry into British complicity in the torture of prisoners abroad, which he announced in July, and whose intention, clearly, is to slap a few wrists, hide any damning evidence, and declare that a line can now be drawn under the whole affair.

As I know many of the released prisoners, and have witnessed the pain — and sometimes the horrors — that still haunt them, and that may never leave them, I cannot argue with their right to be compensated, having never received a penny either from the US government or from the British government, despite the involvement of both countries in their detention without charge or trial, their rendition, and their torture and abuse.

However, what particularly concerns me, in the run-up to the government’s official announcement, is what has been decided about Shaker Aamer, the last British resident in Guantánamo, who was being ignored until some of the former prisoners — or perhaps all of them — suggested that they were not prepared to enter negotiations until his return from Guantánamo was guaranteed.

Although he was was cleared for release from Guantánamo in 2007, Shaker, who has a British wife and four British children, is still held, with both the British and the American governments blaming the other for his continued detention. The Americans claim to have “security issues,” which, if grounded in any reality at all (and this is itself doubtful), could easily be addressed by the British government, and the Americans occasionally point out, off the record, that the British could have him back easily if they were prepared to make enough of a fuss.

The shameful abandonment of Shaker Aamer is presumably because, as an intelligent, articulate and charismatic man who has been the foremost advocate of the rights of the prisoners in Guantánamo, he knows more than is comfortable about the dark workings of the prison (including the deaths of three prisoners in June 2006). However, holding onto Shaker has never been more than unjustly delaying the inevitable, and, in addition, his claims that he was abused in US custody in Afghanistan while British agents were present (which was the subject of a UK court case last year, leading to the launch of an investigation by the Metropolitan Police) means that it is unthinkable that any kind of inquiry can take place without him.

Most of all, however, the former prisoners look out for one another, and are bonded by their experience in a way that no one who has not been in Guantánamo can quite understand. Everyone who leaves the prison tells those left behind that he will do what he can for them, and while the fate of most of the remaining 174 prisoners is outside anyone’s control — even President Obama’s, either for sinister reasons, or because his critics, and supporters of Guantánamo in the US, are disturbingly infuential — the fate of Shaker Aamer is not, and I hope that today’s announcement will swiftly be followed by the arrival of a plane from Guantánamo bringing Shaker Aamer home.

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 Common Dreams and The Public Record.

The identity of the second — Mahmoud Salim al-Ali, a Syrian — was then revealed by Der Spiegel, which stated that he had arrived in the state of Rhineland-Palatinate in central-western Germany. In fact, the identities of both men should not have come as a surprise, as Der Spiegel devoted a major article to their stories back in July, after the German government had confirmed that it would take two prisoners from Guantánamo.

The release is good news not only for Ayman al-Shurafa and Mahmoud al-Ali, but also for the many campaigners and commentators — myself included — who have been trying to keep Guantánamo on the mainstream media’s radar. Although President Obama briefly discussed Guantánamo on September 9, in his first press conference since May, apologizing for failing to meet his self-imposed deadline of January 2010 for the prison’s closure, progress towards belatedly fulfilling his promise has been horribly slow this year. Although the President’s interagency Guantánamo Review Task Force recommended that over half of the remaining prisoners should be released, just 21 of the 111 prisoners cleared for release at the start of the year have been freed in the last nine months, and 90 cleared men still remain.

Dozens of these men — like Mahmoud al-Ali — cannot be repatriated because they face the risk of torture in their home countries, and must wait for third countries to rehouse them (a difficult task, given that the Obama administration, Congress and the judiciary have all made sure that the United States will not take any of them), and one, like Ayman al-Shurafa, is a stateless Palestinian. However, 58 others are Yemenis, who could be sent home tomorrow were it not for an indefensible moratorium on releasing any Yemenis that was issued by President Obama in January, following hysterical overreaction to the news that the failed Christmas day plane bomber, Umar Farouk Abdulmutallab, had been recruited in Yemen.

Clearly, the President has no chance of fulfilling his promise to close Guantánamo until this moratorium is lifted, and those who wish to see the prison closed must do more to challenge this cynical knee-jerk ban which effectively tars all Yemenis as terrorist sympathizers. For now, however, the German government must be congratulated for offering new homes to Ayman al-Shurafa and Mahmoud al-Ali, and for bringing their long and unjust imprisonment to an end.

Ayman al-Shurafa, a stateless Palestinian

Ayman al-Shurafa, who is now 34 years old, was cleared for release by a military review board in 2007, but remained at Guantánamo because of the particular problems facing the handful of Palestinians held in the prison, who are — or were — literally stateless. In al-Shurafa’s case, although his family is from Gaza, his parents settled in Saudi Arabia with their four children when he was a young child. He spent most of his life in Saudi Arabia, where his family still lives, but because he does not have a Saudi passport, the Saudi government refused to press the US authorities for his repatriation. Instead, he holds documents issued by the Jordanian government (as part of his family’s long search for refuge), which are suitable only for travel purposes, and until Germany agreed to accept him, he was, therefore, literally a man without a home.

Around ten years ago, al-Shurafa traveled to Gaza to enroll in a Palestinian university to finish a business degree that he had started in Saudi Arabia. However, after the intifada broke out, he feared for his life and decided that he had to leave. He returned to Saudi Arabia, but, as with all Saudi residents, discovered that his educational opportunities were more limited than those available to Saudi citizens. It was then that, like many other young men, he found himself taking poor advice from a Saudi sheikh who stated that he needed to be “prepared” to defend Muslims from those oppressing them — a religious duty known as e’dad, which is conceptually distinct from jihad or any participation in combat.

As a result, he traveled to Afghanistan in summer 2001, but, like many young men recruited by religious figures, he was unaware that the Taliban’s enemies were other Muslims. Throughout his detention, he maintained that, although he was in Afghanistan, he never took up arms against the Northern Alliance — or against the United States after the US-led invasion of October 2001. In meetings at Guantánamo with his lawyers, he explained that “he hadn’t the faintest idea of what he was getting himself into; he knew nothing about the Taliban’s long inter-Muslim struggle with the Northern Alliance, and had no knowledge whatsoever of al-Qaeda.”

In 2007, a military review board agreed with this assessment, but although al-Shurafa was cleared for release, and was compliant throughout his detention, he still ended up held in isolation in a cell in Camp 6 for 22 to 23 hours a day. Throughout his life, he has suffered from vitiligo, a painful skin complaint, and his permanent isolation from sunlight made his skin condition flare up horribly, causing maddening discomfort, as well as permanent skin damage. According to his lawyers, although he was well regarded by both the guards and by his fellow prisoners, leading prayers in his cell block, he was deeply concerned that he would never see his elderly mother again, and also showed signs of depression, asking the authorities for medication to “let the days go by without feeling anything.”

Mahmoud Salim al-Ali, a Syrian seized by an Afghan warlord

As Der Spiegel explained in July, Mahmoud Salim al-Ali, who is 36 years old, had been living in Kuwait before he made an ill-fated trip to Afghanistan in October 2001. His last job had been in a fruit and vegetable market, but he also had “experience working in the service sector and in industry, as a salesperson in the Sultan Shopping Center and with the Al-Fahad Aluminum & Glass Works.”

However, in late September 2001, he traveled to Afghanistan, via Syria and Iran, apparently because, as the US authorities alleged at Guantánamo, he “had a desire to join the jihad after viewing videos depicting the situation in Afghanistan, Bosnia and Chechnya.” Nevertheless, as Der Spiegel also explained:

[H]e never received any military training or saw any combat. After a few days in Kabul, al-Ali contracted a serious case of diarrhea, for which he was treated in a hospital. He then spent the night in the house of a doctor. By the next day, as he was fleeing from the Northern Alliance, which was fighting the Taliban, his big adventure was over. Al-Ali and his companions were captured by an Afghan warlord and robbed. The bandits took his money, his wedding ring and his watch, and he was later turned over to the Americans.

New life in Germany

For both these men, life in Germany promises to present them with an excellent opportunity to rebuild their lives. As Der Spiegel explained in July, Mahmoud al-Ali “has a wife and a 10-year-old daughter living in Syria who apparently want to come to Germany to live with him, to which the state politicians dealing with the case have no objections,” and Ayman al-Shurafa, whose immediate physical and psychological needs appear to be more acute, is already receiving attention in a medical clinic, where, as Der Spiegel reported on Thursday, “he will be given an extensive check-up over the next few days.” Hamburg government officials stated that “the goal was to help reintegrate the former prisoner into society, with the hope that he will ultimately become self-sufficient.”

Accepting these two men has not been without problems for the German authorities. There was fierce opposition from conservative ministers, for example, and, in response, plans for the state of Brandenburg to take a third prisoner, Mohammed Tahamuttan, the last Palestinian in Guantánamo, were quietly dropped. In July, Rainer Speer, the state’s interior minister, told Der Spiegel, “We were up to the task,” and the newspaper also noted that “the Interior Ministry task force charged with the issue had apparently concluded that accepting all three candidates was fundamentally justifiable.” However, Der Spiegel speculated that the rejection of Tahamuttan was “probably intended primarily to send a political message at home in Germany, where de Maizière felt that he had to show the many members of his party who had opposed reaching an agreement with the United States on Guantánamo that he was not blindly obeying the Americans.”

Noticeably, the government in Berlin also refused to proceed with the resettlement of Ayman al-Shurafa and Mahmoud al-Ali without written guarantees from the Obama administration. As Der Spiegel noted, Germany was “probably the only ally to have done so.” According to a joint declaration signed by the two countries, “The United States will not release any inmates if this could jeopardize the security of the United States or our friends and allies.” Der Spiegel added that “the Germans also have it in writing that the US government would not permit any individuals deemed a threat to the national security of the United States to ‘enter the country,’” explaining that what this means is that the men being released and sent to Germany “are not dangerous and could even enter the United States as tourists.”

As Der Spiegel also explained, this was “a delayed victory for Wolfgang Schäuble who, as interior minister in Berlin’s former grand coalition government, refused to accept Guantánamo inmates because, as he noted, they would not even be given a tourist visa for the United States.”

Will other countries now help?

While this will send shockwaves though the more paranoid parts of the US establishment (and should, if there is any justice, lead to calls to revoke the various bans on bringing cleared prisoners to live in the US), the impact of Germany’s acceptance of two prisoners should be most marked in Europe, where hopes for rehousing other cleared prisoners who cannot be repatriated are most sharply focused.

Although ten other countries in Europe (Albania, Belgium, Bulgaria, France, Hungary, Ireland, Portugal, Slovakia, Spain and Switzerland) have taken in 23 prisoners over the last 16 months, who had no prior connection to their new homes (and 15 others have been settled in Bermuda, Cape Verde, Georgia, Latvia and Palau), other countries have failed to be swayed by the entreaties of Daniel Fried, President Obama’s Special Envoy to Guantánamo.

Ambassador Fried’s thankless task has been to persuade other countries to overlook US hypocrisy regarding the resettlement of prisoners, and to help President Obama close Guantánamo by taking in men like Ayman al-Shurafa and Mahmoud al-Ali. However, despite his success to date, certain prominent countries in western Europe — Austria, Denmark, Finland, the Netherlands, Norway, Sweden and the UK — have so far refused to help, even though, in some cases, persuasive arguments can be made that they should be involved as part of a tacit acknowledgment of their involvement in the crimes committed in the “War on Terror.”

In Norway’s case, this arose because of the involvement of AkerKvaerner, the country’s largest commercial company, which, as filmmaker and journalist Erling Borgen has noted, “had 700 people working on the Guantánamo base,” providing logistical support that included “fueling the rendition flights.” In Sweden’s case, the complicity centers on the government’s involvement, in December 2001, in the CIA-directed kidnap and rendition to torture in Egypt of two Egyptian asylum seekers, Ahmed Agiza and Mohammed Alzery. In Britain’s case, the true scale of the complicity of the Bush administration’s closest ally has not yet been revealed, but enough has been exposed to indicate that providing new homes for a handful of cleared Guantánamo prisoners who cannot be repatriated is the least that the government should do.

The British government’s complicity includes former foreign secretary Jack Straw’s recently-revealed support for Guantánamo and former Prime Minister Tony Blair’s interference in plans to provide consular access to a British citizen seized in Zambia (Martin Mubanga). It also includes involvement in the kidnap and rendition of two British residents in the Gambia (Bisher al-Rawi and Jamil El-Banna), its knowledge of the torture by US agents in Pakistan of British resident Binyam Mohamed, who was later sent to be tortured in Morocco (also with British knowledge), and the repeated visits made by British agents to British nationals and residents while they were held in Pakistan, and in US custody in Afghanistan and Guantánamo, even though it was apparent that the conditions in which they were being held did not meet internationally recognized standards of humane treatment.

Although Prime Minister David Cameron has announced an inquiry into British complicity in torture abroad, one way in which the government could atone for its deep involvement in the “War on Terror” would be to step back from the outrageous position taken by the previous government — that, in securing the return of nine British nationals and five British residents, the UK had “done its bit,” as foreign secretary David Miliband claimed in January 2009 — and accept that this was, in fact, nothing more than what was required.

The new coalition government already faces questions about why it cannot secure the return of Shaker Aamer, the last British resident in Guantánamo, who was cleared for release in 2007 but is still held, and is also under pressure to explain why it will not accept Ahmed Belbacha, an Algerian who lived and worked in the UK between 1999 and 2001, who was also cleared for release in 2007, but is terrified of returning to Algeria. Perhaps it might now be worth asking if the British government will take up where Germany left off, and also offer a new home to Mohammed Tahamuttan, the Palestinian who is still waiting for someone to free him from Guantánamo.

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

As published exclusively on the website of the Future of Freedom Foundation, as “Two Freed Prisoners in Germany.” Cross-posted on The Public Record, Cageprisoners and New Left Project.

See the following for articles about the 142 prisoners released from Guantánamo from June 2007 to January 2009, and the 64 prisoners released from February 2009 to 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); July 2010 — 1 Algerian, 1 Syrian to Cape Verde, 1 Uzbek to Latvia, 1 unidentified Afghan to Spain.

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

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

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

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

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

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

As I explained in an article at the time:

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

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

In a particularly powerful passage, Judge Hawkins stated:

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

Elsewhere, as I also explained:

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

I was also particularly impressed by the following passage:

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

As I also explained:

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

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

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

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

For the ACLU, Ben Wizner stated:

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

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

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

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

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

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

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

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

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

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

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

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

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.

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, published below, looks at “CIA detention facilities or facilities operated jointly with United States military in battlefield zones,” and the third 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.

B. CIA detention facilities or facilities operated jointly with United States military in battlefield zones

131. Although it is still not possible to identify all 28 of the CIA’s acknowledged high-value detainees, the figures quoted in a memo of the Office of Legal Counsel of 30 May 2005 written by Principal Deputy Assistant Attorney General Stephen G. Bradbury [PDF] indicate that the other 66 prisoners in the CIA programme were regarded as less significant. Some of them were subsequently handed over to the United States military and transferred to Guantanamo, while others were rendered to the custody of their home countries or other countries. In very few cases were they released.

1. Afghanistan

132. Outside of the specific “high-value detainee” programme, most detainees were held in a variety of prisons in Afghanistan. Three of these are well-known: a secret prison at Bagram airbase, reportedly identified as “the Hangar” [See also the interview with Murat Kurnaz (annex II, case 14)], and two secret prisons near Kabul, known as the “dark prison” and the “salt pit”. During an interview held with the experts, Bisher al-Rawi indicated that, in the dark prison, there were no lights, heating or decoration. His cell was about 5 x 9 feet with a solid steel door and a hatch towards the bottom of it. He only had a bucket to use as a toilet, an old piece of carpet and a rusty steel bar across the width of the cell to hang people from. All the guards wore hoods with small eye holes, and they never spoke. Very loud music was played continuously. He also indicated that he had been subjected to sleep deprivation for up to three days and received threats. Binyam Mohamed provided a similar account to the experts [see annex II, case 18], as did the lawyer of Khaled El-Masri [annex II, case 9] and Suleiman Abdallah [annex II, case 2]. The experts heard allegations about three lesser-known prisons, including one in the Panjshir valley, north of Kabul, and two others identified as Rissat and Rissat 2, but it was not yet possible to verify these allegations. Of the prisoners identified as having been held in secret CIA custody (in addition to the above-mentioned high-value detainees), seven were eventually released and four escaped from Bagram in July 2005, namely Abu Yahya al-Libi, a Libyan; Omar al-Faruq, a Kuwaiti, captured in Bogor, Indonesia, in 2002; Muhammad Jafar Jamal al-Kahtani, a Saudi, reportedly [re-]captured in Khost province, Afghanistan, in November 2006; and Abdullah Hashimi, a Syrian, also known as Abu Abdullah al-Shami. Five prisoners were reportedly returned to the Libyan Arab Jamahiriya in 2006: Ibn al-Sheikh al-Libi [see para. 146 below]; Hassan Raba’i and Khaled al-Sharif, both captured in Peshawar, Pakistan, in 2003, who had “spent time in a CIA prison in Afghanistan”; Abdallah al-Sadeq, seized in a covert CIA operation in Thailand in the spring of 2004; and Abu Munder al-Saadi, both held briefly before being rendered to the Libyan Arab Jamahiriya. In May 2009, Human Rights Watch reported that its representatives briefly met Ibn al-Sheikh al-Libi on a visit to Abu Salim prison in Tripoli, although he refused to be interviewed. Human Rights Watch interviewed four other men, who claimed that, “before they were sent to the Libyan Arab Jamahiriya, United States forces had tortured them in detention centers in Afghanistan, and supervised their torture in Pakistan and Thailand”. One of the four was Hassan Raba’i, also known as Mohamed Ahmad Mohamed al-Shoroeiya, who stated that, in mid-2003, in a place he believed was Bagram prison in Afghanistan, “the interpreters who directed the questions to us did it with beatings and insults. They used cold water, ice water. They put us in a tub with cold water. We were forced [to go] for months without clothes. They brought a doctor at the beginning. He put my leg in a plaster. One of the methods of interrogation was to take the plaster off and stand on my leg”.

133. The released detainees are:

• Laid Saidi, an Algerian seized in the United Republic of Tanzania on 10 May 2003, was handed over to Malawians in plain clothes who were accompanied by two middle-aged Caucasian men wearing jeans and T-shirts. Shortly after the expulsion, a lawyer representing Mr. Saidi’s wife filed an affidavit with a Tanzanian court, saying that immigration documents showed that Mr. Saidi had been deported through the border between Kasumulu, United Republic of Tanzania, and Malawi. He was held for a week in a detention facility in the mountains of Malawi, then rendered to Afghanistan, where he was held in the “dark prison”, the “salt pit” and another unidentified prison. About a year after he was seized, he was flown to Tunisia, where he was detained for another 75 days, before being returned to Algeria, where he was released.

• Three Yemenis — Salah Nasser Salim Ali Darwish, seized in Indonesia in October 2003, Mohammed al-Asad and Mohammed Farag Ahmad Bashmilah — were held in a number of CIA detention facilities until their return to Yemen in May 2005, where they continued to be held, apparently at the request of the United States authorities. Mr. Bashmilah was detained by Jordanian intelligence agents in October 2003, when he was in Jordan to assist his mother who was having an operation. From 21 to 26 October 2003, Mr. Bashmilah was detained without charge and subjected to torture and cruel, inhuman and degrading treatment, including prolonged beatings and being threatened with electric shocks and the rape of his mother and wife [see Declaration of Mohamed Farag Ahmad Bashmilah in support of plaintiffs’ opposition to the motion of the United States to dismiss or, in the alternative, for summary judgment, civil action No. 5:07-cv-02798 in the United States District Court for the Northern District of California, San Jose Division]. A communication was sent by the special rapporteurs on torture and on human rights while countering terrorism to the Governments of the United States, Indonesia, Yemen and Jordan on the cases of Bashmilah and Salim Ali, who were both detained and tortured in Jordan [E/CN.4/2006/6/Add.1, paras. 93, 126, 525 and 550]. Only the latter country responded, declaring that no record showing that the two men had been arrested for the violations of either the penal, disciplinary or administrative codes, and that they did not have documented files indicating that they posed a security concern, eliminating the possibility of their arrest for what may be described as terrorism [A/HRC/4/33/Add.1, para. 123]. The Working Group on Arbitrary Detention adopted its opinion No. 47/2005 (Yemen) on the case on 30 November 2005, declaring their detention to be arbitrary as being devoid of any legal basis. In its reply to the allegations, the Government of Yemen confirmed that Mr. Bashmilah and Mr. Salim Ali had been handed over to Yemen by the United States. According to the Government, they had been held in a security police facility because of their alleged involvement in terrorist activities related to Al-Qaida. The Government added that the competent authorities were still dealing with the case pending receipt of the persons’ files from the United States authorities in order to transfer them to the Prosecutor [A/HRC/4/40/Add.1, para. 15].

• Khaled El-Masri, a German seized on the border of the former Yugoslav Republic of Macedonia on 31 December 2003, was held in a hotel room by agents of that State for 23 days, then rendered by the CIA to the “salt pit”. He was released in Albania on 29 May 2004 [Also see Interview with the lawyer of Khaled El-Masri (annex II, case 9)].

• Khaled al-Maqtari, a Yemeni seized in Iraq in January 2004, was initially held in Abu Ghraib, then transferred to a secret CIA detention facility in Afghanistan. In April 2004, he was moved to a second secret detention facility, possibly in Eastern Europe, where he remained in complete isolation for 28 months, until he was returned to Yemen and released in May 2007.

• Marwan Jabour, a Jordanian-born Palestinian, was seized in Lahore, Pakistan, on 9 May 2004, and held in a CIA detention facility in Afghanistan for 25 months. He was then transferred to Jordan, where he was held for six weeks, and to Israel, where he was held for another six weeks, before being freed in Gaza.

[Also mentioned:] Murat Kurnaz, a Turkish national residing in Germany, interviewed by the experts for the present study, was arrested in Pakistan in November or December 2001 and initially held by Pakistani police officers and officers of the United States. He was then transferred into the custody of the United States at that country’s airbase in Kandahar, Afghanistan, before being taken to the naval base at Guantanamo Bay on 1 February 2002. He was held secretly until May 2002, and released on 24 August 2006.

134. A total of 23 detainees who ended up in Guantanamo were also held in CIA detention facilities in Afghanistan. They include:

(a) Six men seized in the Islamic Republic of Iran in late 2001:

• Wassam al-Ourdoni, a Jordanian, who was released from Guantanamo in April 2004. In 2006, he told Reprieve that he had been seized by the Iranian authorities while returning from a religious visit to Pakistan with his wife and newborn child in December 2001, then handed over to the Afghan authorities, who handed him on to the CIA. He said that the Americans “asked me about my relationship with Al-Qaida. I told them I had nothing to do with Al-Qaida. They then put me in jail under circumstances that I can only recall with dread. I lived under unimaginable conditions that cannot be tolerated in a civilized society.” He said that he was first placed in an underground prison for 77 days: “this room was so dark that we couldn’t distinguish nights and days. There was no window, and we didn’t see the sun once during the whole time.” He said that he was then moved to “prison number three”, where the food was so bad that his weight dropped substantially. He was then held in Bagram for 40 days before being flown to Guantanamo [Clive Stafford Smith, “Abandoned to their fate in Guantánamo”, Index on Censorship, 2006].

• Aminullah Tukhi, an Afghan who was transferred to Afghan custody from Guantanamo in December 2007. He alleged that he had fled from Herat to the Islamic Republic of Iran to escape the Taliban, and was working as a taxi driver when the Iranians began rounding up illegal immigrants towards the end of 2001 [PDF, pp. 71-7].

• Hussein Almerfedi, a Yemeni, still at Guantanamo. He alleged that he was “kidnapped” in the Islamic Republic of Iran and held for a total of 14 months in three prisons in Afghanistan, “two under Afghani control and one under US control [Bagram]” [PDF, pp. 31-40].

• Tawfiq al-Bihani, a Yemeni, still at Guantanamo. Allegedly, after deciding to flee Pakistan after the 9/11 attacks, he was “arrested by Iranian Police in Zahedan, Iran for entering the country without a visa” and held “in various prisons in Iran and Afghanistan, for approximately one year in total [PDF, pp. 66-9].

• Rafiq Alhami, a Tunisian still held at Guantanamo, who alleged that “I was in an Afghan prison but the interrogation was done by Americans. I was there for about a one-year period, transferring from one place to another. I was tortured for about three months in a prison called the Prison of Darkness or the Dark Prison” [PDF, pp. 147-61]. And further: “Back in Afghanistan I would be tortured. I was threatened. I was left out all night in the cold. It was different here. I spent two months with no water, no shoes, in darkness and in the cold. There was darkness and loud music for two months. I was not allowed to pray. I was not allowed to fast during Ramadan. These things are documented. You have them” [PDF, pp. 20-22].

• Walid al-Qadasi, a Yemeni who was rendered to the “dark prison” and held in other prisons in Afghanistan, together with four other men whose whereabouts are unknown [In addition, Aminullah Tukhi explained that 10 prisoners in total -- six Arabs, two Afghans, an Uzbek and a Tajik -- had been delivered to the Americans. Although six of these men are accounted for above, it is not known what happened to the other four: an Arab, an Afghan, the Uzbek and the Tajik]. An allegation letter was sent in November 2005 by the Special Rapporteur on torture in relation to Walid Muhammad Shahir Muhammad al-Qadasi, a Yemeni citizen, indicating that the following allegations had been received: He was arrested in Iran in late 2001. He was held there for about three months before being handed over to the authorities in Afghanistan who in turn handed him over to the custody of the US. He was held in a prison in Kabul. During US custody, officials cut his clothes with scissors, left him naked and took photos of him before giving him Afghan clothes to wear. They then handcuffed his hands behind his back, blindfolded him and started interrogating him. The apparently Egyptian interrogator, accusing him of belonging to Al-Qaida, threatened him with death. He was put in an underground cell measuring approximately two metres by three metres with very small windows. He shared the cell with ten inmates. They had to sleep in shifts due to lack of space and received food only once a day. He spent three months there without ever leaving the cell. After three months, Walid al-Qadasi was transferred to Bagram, where he was interrogated for one month. His head was shaved, he was blindfolded, made to wear ear muffs and a mouth mask, handcuffed, shackled, loaded on to a plane and flown out to Guantanamo, where he was held in solitary confinement for one more month. In April 2004, after having been detained for two years, he was transferred to Sana’a prison in Yemen. In its response, the Government of the United States reiterated its earlier announcements that no Government agency was allowed to engage in torture and that its actions complied with the non-refoulement principle. Opinion No. 47/2005 of the Working Group on Arbitrary Detention also concerns Mr. al-Qadasi [See E/CN.4/2006/6/Add.1, paras. 1 and 527, and the response from the Government of the United States (A/HRC/10/44/Add.4, para. 252). See also the report of the Working Group on Arbitrary Detention, opinion No. 47/2005 (A/HRC/4/40/Add.1)].

(b) Two men seized in Georgia in early 2002 and sold to United States forces:

• Soufian al-Huwari, an Algerian, transferred to Algerian custody from Guantanamo in November 2008; and Zakaria al-Baidany, also known as Omar al-Rammah, a Yemeni, still held at Guantanamo. According to Mr. al-Huwari, both were rendered to the “dark prison”, and were also held in other detention facilities in Afghanistan: “The Americans didn’t capture me. The Mafia captured me. They sold me to the Americans”. He added: “When I was captured, a car came around and people inside were talking Russian and Georgian. I also heard a little Chechnyan. We were delivered to another group who spoke perfect Russian. They sold us to the dogs. The Americans came two days later with a briefcase full of money. They took us to a forest, then a private plane to Kabul, Afghanistan” [PDF, pp. 15-23].

(c) Bisher al-Rawi, an Iraqi national and British resident, was seized in the Gambia in November 2002, and rendered to the “dark prison” at the beginning of December 2002. He was kept shackled in complete isolation and darkness for two weeks. On or around 22 December 2002, he was transferred to Bagram, and then to Guantanamo on 7 February 2003. He was finally released on 30 March 2007. At Bagram, he was reportedly threatened and subjected to ill-treatment and sleep deprivation for up to three days at a time [Interview with Bisher al-Rawi (annex II, case 4)].

(d) Jamil El-Banna, a Jordanian national and British resident, was also seized in the Gambia in November 2002 and rendered to the “dark prison”, then to Guantanamo. He was released from Guantanamo in December 2007.

(e) Six other detainees were flown to Guantanamo on 20 September 2004 after having spent one to three years in custody:

• Abdul Rahim Ghulam Rabbani and Mohammed Ahmad Ghulam Rabbani, Pakistani brothers seized in Karachi, who were held in the “salt pit” [Both Laid Saidi and Khaled El-Masri spoke about getting to know the Rabbani brothers in the “salt pit”];

• Abdulsalam al-Hela, a Yemeni colonel and businessman who was seized in Egypt;

• Adil al-Jazeeri, an Algerian seized in Pakistan [PDF, pp. 315-34];

• Sanad al-Kazimi, a Yemeni seized in the United Arab Emirates [PDF. Also on the flight that took these men to Guantanamo were Ali al-Hajj al-Sharqawi, Hassan bin Attash and Binyam Mohamed. See also paras 151 and 159 below];

• Saifullah Paracha, a Pakistani businessman seized in Thailand, who was held in isolation in Bagram for a year.

Mr. al-Kazimi was apprehended in Dubai in January 2003 and held at an undisclosed location in or near Dubai for two months. He was then transferred to a different place about two hours away. He was kept naked for 22 days, at times shackled, and subjected to extreme climatic conditions and simulated drowning. After six months, he was transferred to United States custody, allegedly pursuant to the CIA rendition programme. He was taken to Kabul and held in the “dark prison” for nine months, where he suffered severe physical and psychological torture by unidentified persons. He was then transferred to Bagram airbase, where he was held for a further four months in United States custody. Again, he was allegedly subjected to severe physical and psychological torture by what he believed were the same unidentified persons he had encountered in the “dark prison” [See the report of the Working Group on Arbitrary Detention, opinion No. 3/2009 (United States of America) (A/HRC/13/30/Add.1)].

135. Four other detainees, held in Bagram, are known because lawyers established contact with their families and filed habeas corpus petitions on their behalf:

• Redha al-Najar, a Tunisian who was seized in Karachi in May 2002.

• Amin Mohammad al-Bakri, a Yemeni who was seized in Bangkok on 28 December 2002 by agents of the intelligence services of the United States or of Thailand. Throughout 2003, his whereabouts were unknown. The Thai authorities confirmed to Mr. al-Bakri’s relatives that he had entered Thai territory, but denied knowing his whereabouts. In January 2004, Mr. al-Bakri’s relatives received a letter from him through ICRC, informing them that he was being kept in detention at the Bagram airbase. It was reported that Mr. al-Bakri was detained owing to his commercial connections with Mr. Khalifa, a cousin of Osama bin Laden later assassinated in Madagascar [Working Group on Arbitrary Detention, opinion No. 11/2007 (Afghanistan/ United States of America) (A/HRC/7/4/Add.1)].

• Fadi al-Maqaleh, a Yemeni seized in 2004, who was sent to Abu Ghraib before Bagram.

• Haji Wazir, an Afghan seized in the United Arab Emirates in late 2002 [PDF].

136. The whereabouts of 12 others are unknown, and the others remain to be identified. It is probable that some of these men have been returned to their home countries, and that others are still held in Bagram. The experts received allegations that the following men were also held: Issa al-Tanzani (Tanzanian), also identified as Soulayman al-Tanzani, captured in Mogadishu; Abu Naseem (Libyan), captured in Peshawar, Pakistan, in early 2003; Abou Hudeifa (Tunisian), captured in Peshawar, Pakistan, at the end of 2002; and Salah Din al-Bakistani, captured in Baghdad. Marwan Jabour also mentioned eight other prisoners. One was Yassir al-Jazeeri (Algerian), seized in Lahore, March 2003 (whom he met), and he heard about seven others: Ayoub al-Libi (Libyan), seized in Peshawar in January 2004; Mohammed (Afghan, born Saudi), seized in Peshawar in May 2004; Abdul Basit (Saudi or Yemeni), seized before June 2004; Adnan (nationality unknown), seized before June 2004; an unidentified Somali (possibly Shoeab as-Somali or Rethwan as-Somali); another unidentified Somali; and Marwan al-Adeni (Yemeni), seized in or around May 2003.

2. Iraq

137. Although the Government of the United States stated that the Geneva Conventions applied to detainees seized during the occupation, an unknown number of persons were deliberately held “off the books” and denied ICRC access. In Abu Ghraib, for example, the abuse scandal that erupted following the publication of photographs in April 2004 involved military personnel who were not only holding supposedly significant detainees delivered by the United States military, but others delivered by the CIA or United States Special Forces units. The existence of “ghost detainees”, who were clearly held incommunicado in secret detention, was later exposed in two United States investigations.

138. In August 2004, a report into detainee detentions in Iraq (chaired by former Secretary of Defense James R. Schlesinger) noted that “other Government agencies” had brought a number of “ghost detainees” to detention facilities, including Abu Ghraib, “without accounting for them, knowing their identities, or even the reason for their detention”, and that, on one occasion, a “handful” of these detainees had been “moved around the facility to hide them from a visiting ICRC team” [PDF].

139. In another report issued in August 2004, Lieutenant General Anthony R. Jones and Major General George R. Fay noted that eight prisoners in Abu Ghraib had been denied access to ICRC delegates by Lieutenant General Ricardo Sanchez, the Commander of the Coalition Joint Task Force in Iraq: “Detainee-14 was detained in a totally darkened cell measuring about 2 metres long and less than a metre across, devoid of any window, latrine or water tap, or bedding. On the door the delegates noticed the inscription ‘the Gollum’, and a picture of the said character from the film trilogy ‘The Lord of the Rings’” [PDF].

140. Although the Schlesinger report noted the use of other facilities for “ghost detainees”, the locations of these other prisons, and the numbers of detainees held, have not yet been thoroughly investigated. In June 2004, the then United States Secretary of Defense Donald Rumsfeld admitted that a suspected leader of Ansar al-Aslam had been held for more than seven months without ICRC being notified of his detention; he also stated: “He was not at Abu Ghraib. He is not there now. He has never been there to my knowledge” [also see this New York Times report]. According to another report, the prisoner was known as “Triple X” and his secret detention was authorized by Lieutenant General Ricardo Sanchez, who issued a classified order in November 2003 “directing military guards to hide [him] from Red Cross inspectors and keep his name off official rosters”. In addition, some locations may well be those in which prisoners died in United States custody. In 2006, Human Rights First published a report identifying 98 deaths in United States custody in Iraq, describing five deaths in CIA custody, including Manadel al-Jamadi, who died in Abu Ghraib, and others at locations including Forward Operating Base Tiger, in Anbar province, a forward operating base near Al-Asad, a base outside Mosul, a temporary holding camp near Nasiriyah and a forward operating base in Tikrit [PDF].

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) 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.

For a sequence of articles discussing the use of torture in secret prisons, see: An unreported story from Guantánamo: the tale of Sanad al-Kazimi (August 2007), Rendered to Egypt for torture, Mohammed Saad Iqbal Madni is released from Guantánamo (September 2008), A History of Music Torture in the “War on Terror” (December 2008), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two), 9/11 Commission Director Philip Zelikow Condemns Bush Torture Program, Who Authorized The Torture of Abu Zubaydah?, CIA Torture Began In Afghanistan 8 Months before DoJ Approval, Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (all April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison , Dick Cheney And The Death Of Ibn al-Shaykh al-Libi, The “Suicide” Of Ibn al-Shaykh al-Libi: Why The Media Silence?, Two Experts Cast Doubt On Ibn al-Shaykh al-Libi’s “Suicide”, Lawrence Wilkerson Nails Cheney On Use Of Torture To Invade Iraq, In the Guardian: Death in Libya, betrayal by the West (in the Guardian here), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA) (all May 2009) and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009), When Torture Kills: Ten Murders In US Prisons In Afghanistan (July 2009), US Torture Under Scrutiny In British Courts (July 2009), What The British Government Knew About The Torture Of Binyam Mohamed (August 2009), Torture in Bagram and Guantánamo: The Declaration of Ahmed al-Darbi (September 2009), UK Judges Order Release Of Details About The Torture Of Binyam Mohamed By US Agents (October 2009), “Model Prisoner” at Guantánamo, Tortured in the “Dark Prison,” Loses Habeas Corpus Petition (December 2009), Dark Revelations in the Bagram Prisoner List (January 2010), Two Algerian Torture Victims Are Freed from Guantánamo (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.

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.