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.”

Since last Wednesday, the ripples of dissent in Syria have spread, leading to major unrest in the southern city of Dara’a, where, last Friday, protests about the arrest of a group of 15 schoolchildren who had dared to scrawl graffiti on a wall explaining that “the people want the overthrow of the regime” escalated into something far more grave, when the security services opened fire, killing three protestors in cold blood. Dubbed “Dignity Friday” by protestors, who had been using social networking sites to coordinate their activities, the clampdown in Dara’a immediately echoed throughout the region, where other protests had been taking place, and the next day, as the Guardian explained, “a much larger, angrier crowd — estimated to number as many as 20,000 — turned out for the burial of the previous days’ victims.”

For a country generally stunned into public silence since 1963 by emergency laws that prohibit any demonstrations against the regime — and by vicious reprisals on the rare occasions that dissent has previously threatened the regime — two protests in the capital in a week (even before the bloodshed in Dara’a just days later) was extraordinary, and the government’s response indicated how — despite the small number of people involved — senior officials were clearly rattled. A small clip of the “Day of Rage” was made available on YouTube, where it has, to date, been seen by over 125,000 people, but the response to the call for the release of the 21 political prisoners was even more significant, because of the government’s overreaction.

Of the 150 protestors last Wednesday, the majority were themselves human rights activists — or relatives of the 21 political prisoners whose release the protest was designed to secure. The 21 include Kamal al-Labwani, a Kurdish doctor and artist, and one of the most prominent members of the Syrian opposition movement, who was imprisoned in 2007; Muhannad al-Hassani, the Kurdish president of the Syrian Human Rights Organization, who was imprisoned in June 2010; Ali al-Abdallah, imprisoned two weeks ago — not for the first time — for criticizing Syria’s close relations with Iran, as a member of the “Damascus Declaration” group, which has long called for Syria’s transition to a democratic nation; and Anwar Bunni, a human rights lawyer and activist, and another member of the “Damascus Declaration” group, who was imprisoned in April 2007.

At noon last Wednesday, as announced in advance, the group of protestors –including Kamal al-Labwani’s son and six other relatives, human rights activists Mazen Darwish, Suhair Atassi and Sereen Khouri, and former prisoners of conscience Nahed Badawiya and Kamal Cheikho — gathered outside the Interior Ministry in Damascus to present a petition calling for the prisoners’ release. However, as a human rights activist who was at the demonstration explained:

When we got to the ministry, we could see that there were a lot of security services around. I saw five buses full of security members parked 300 meters from us. At first, an employee from the Ministry of Interior came out and told us that the families of the detainees would be allowed to present the petition to the minister. We asked for five minutes, as some families were still arriving. When a few families raised photos of detained relatives, the security services suddenly attacked us and beat us with black batons.

Providing corroboration, the daughter of a prominent political prisoner stated:

We had barely taken my father’s picture out when men ran toward us and started beating us. They beat my mother on her head and arm with a baton. They pulled my sister’s hair and beat her as well until my uncle managed to get her away. We started running away, but they followed us.

Afterwards, witnesses stated that 40 of the protestors has been seized by the security services, and only six were known to have been released — including Mazen Darwish, Tayeb Tizini, the celebrated author and professor of philosophy at Damascus University, and Hassiba Abdel-Rahman, a former prisoner of conscience, jailed in 1979, 1986 and 1992 for having belonged to the “Labor Party of Syria” and for meeting members of Amnesty International.

It was reported that violence had been used on some of the protestors, and that “security services interrogated each person separately and asked him for the password to his Facebook account.” One demonstrator told Reuters that the security services “pulled Suhair by her hair and took her away,” and Mazen Darwish explained to the BBC that he was set free “only after being held for five hours in the military security branch’s detention centre alongside 20 others, including women.” He also said, “When I showed them my international press card, they shouted and said, ‘Why were you standing among protesters and not among the journalists?’”

The next day, the Syrian government announced that it was charging 32 of the prisoners, and released a list of 25 names, including rights activist Suhair Atassi and four relatives of Kamal al-Labwani. The prisoners were charged with “attacking the reputation of the state, provoking racism and sectarianism and damaging relations between Syrians” — the type of Orwellian “crimes” that plague the charge sheets of anyone who publicly dares to criticize the Libyan state. (Note: For further information about these political prisoners, and the 21 already held, please see Political Prisoners in Syria: An Urgent Crisis Now!)

Expressing dismay at the charges, Philip Luther, Amnesty International’s Deputy Director for the Middle East and North Africa, said in a news release, “Like many of the political prisoners whose release they were calling for, protestors appear to have been arrested simply for the peaceful expression of their views. The Syrian authorities must immediately release all those arrested in the last two days for merely attending peaceful protests, and stop these attacks on freedom of expression and assembly.”

The events of March 16 — and the resonant history of those held in Damascus, with their long and determined commitment to democracy and human rights — provided an important historical weight to the infectious eruption of violence in the south, although clearly, if a tipping point is to be reached, many different elements of dissatisfaction, bubbling under the surface for decades, will have to prove impossible for the President al-Assad’s regime to suppress, as Maher Arar, a Syrian-born Candian citizen rendered by the US for torture in Syria during the “War on Terror,” explained in an article for the Guardian on Wednesday. After explaining that he knew, from personal experience, how Syria’s human rights situation had degenerated under Bashar al-Assad, Arar proceeded to analyze the Syrian people’s reluctance to embrace revolution, noting, for one thing, their “ethnic divisions”:

The ruling Alawite minority, to whom Assad belongs and whose members have full control over sensitive military and intelligence posts, is only one of many. There is also the powerless Sunni majority, Christians, Kurds, Ismailis and Duruz. There are also over 1 million old Palestinian immigrants and, more recently, more than 1 million Iraqi refugees have decided to make Syria their home. All these groups have competing and conflicting interests. These ethnic divisions make it extremely challenging to have a unified popular voice, but what is encouraging is the fact that the Syrian youth who are leading this non-violent reform movement have made it clear that it is purely secular in nature and they will not allow it to be hijacked by any opportunist ethnic group or opposition party.

At present, it is unclear whether the necessary tipping point for revolution has been reached, although it is starting to look like it has, for two reasons. The first is the anger that was expressed even before the clampdown, when, as Rania Abouzeid explained in a perceptive article for Time:

[D]escriptions of the uprising in Dara’a were dramatic. The alleged details included dozens of young men pelting a poster — in broad daylight — of a smiling President Bashar al-Assad; a statue of his late father and predecessor Hafiz al-Assad, demolished; official buildings including the ruling Ba’ath Party’s headquarters and the governor’s office burned down. “There is no fear, there is no fear, after today there is no fear!” hundreds of men chant, captured in shaky mobile phone footage allegedly taken on Monday.

The second reason is the entrenchment and escalation of those sentiments, as the state’s violence has continued to escalate over the last few days. After the shooting in Dara’a last Friday, the security forces have been on the offensive, as the Guardian reported, noting that they have responded to protests “with water cannon, teargas, rubber bullets and live ammunition,” and that “The total death toll now stands at 16,” after the authorities “launched an assault on a neighbourhood sheltering anti-government protesters, fatally shooting at least nine in an operation that lasted nearly 24 hours,” according to witnesses. As the Guardian explained, “At least six were said to have been killed in an early morning attack on the al-Omari mosque” in Dera’a, and police “shot three other protesters in the city centre after dusk,” according to a local activist.

To his credit, the President responded swiftly to the deaths, “sending a high-ranking delegation to deliver his condolences to the families of the dead,” as Time reported, and also sacking the governor and releasing the schoolchildren whose graffiti set the chaos in motion, although reports of the scale of the assault on the people of Dera’a have continued to grow alarmingly over the last 24 hours, which can only devalue the President’s efforts.

As Channel 4 News reported, claims of fatalities have been revised steeply upwards, and now range “from 32 to more than 100,” with Amnesty International also reporting that the number of human rights activists who have “disappeared” has also increased sharply from the 32 charged in Damascus last week to a total of 93. As Channel 4 News also noted, chillingly, “Here in the newsroom, we have watched amateur footage on ‘YouTube’ which suggests that armed troops did open fire protestors in Dera’a. In scenes too shocking to broadcast, demonstrators lie motionless, some in pools of blood.”

Moreover, as Arabic language websites have been reporting, the protesters have not given up, and have, instead, given the government “until Friday morning to meet a list of demands relayed back to the President by his delegation,” as Time explained, which include the lifting of the emergency law and the release of all political prisoners. If their demands are not met, they have promised that this Friday will be the “Friday of the Martyrs,” not just in Dara’a but throughout the country.

That sounds ambitious, but on the other hand, one thing we should all have learned from events in the Middle East this year is that movements can grow so swiftly that the unthinkable can become possible, and those of us in the West can only watch in wonder.

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 Cageprisoners.

I do so because, for those of us who have been studying the story of Guantánamo, of US torture and of British complicity in torture for many years, the financial settlement is a huge story, an admission of guilt on the part of the British government, prompted by judges whose commitment to the truth — and to the necessary revulsion at revelations of torture — has taken precedence over the narrow objections of ministers trying to cover their backs for their involvement in criminal wrongdoing by bleating about the importance of national security.

I also do so because I have been writing about Shaker Aamer for many years, and was recently reminded that the first event that I attended, which sought his release from Guantánamo, was in July 2007, in Balham, to mark his 2000th day in US custody without charge or trial. In April this year, I attended a protest to mark his 3000th day in US custody, and as he approaches the start of his tenth year in US custody it is unforgiveable that he is still held, when neither the American government nor the British government has any credible evidence to continue holding him.

I have also been writing about him with some urgency this past week, because he needs to be here in the UK to take part in a Metropolitan Police investigation into his allegations that British agents were present when he was subjected to torture in US custody in Afghanistan, and to take part in the judicial inquiry, announced by David Cameron in July, that will begin once that investigation is complete.

As my latest contribution, I am cross-posting below an article from the Independent, in which former Guantánamo prisoner (and Cageprisoners director) Moazzam Begg discusses the financial settlement, writes with great insight about the torture, threats and abuse to which he and other prisoners were subjected, and calls once more for Shaker Aamer’s return to the UK.

Moazzam Begg: We settled so we could get our lives back
The Independent, November 21, 2010

Eid ul-Adha is the most important Muslim celebration of the year. It is a time when Muslims commemorate the great test undergone by the prophet Abraham when he was ordered by the Almighty to sacrifice his son. It is a time for joy and for spending quality time with the family. This year, it fell on Tuesday 16 November. It is inconceivable that politicians and journalists would be unaware of the significance of that date — the same day the Government announced that it had reached an out-of-court settlement with 16 Guantánamo detainees, British citizens and residents, who were detained by US forces.

In the morning, my daughter was in tears in front of press photographers. By the evening, Islamophobic blogsites were posting statements such as: “Somebody post any of these innocent victims’ addresses and I will save the British taxpayers millions.”

None of this mattered to the scores of reporters who incessantly called me, and others, from the moment news of the imminent government announcement was “leaked” to ITN News on Monday. Neither did it prevent numerous journalists with their cameras and satellite vans turning up outside my house, desperate for a scoop on where the taxpayers’ money had been spent and to know if our voices — once so outspoken against the abuses we had sustained and which we alleged had happened with the complicity of our government — had now been silenced in return for a grubby pay-off.

Of the 16 men involved in the case against the British secret intelligence services, five were held for two-and-a-half years; five served three years; four others served six years; one served eight, and another, Shaker Aamer, is still in Guantánamo, nine years on. Collectively, we have spent over 66 years imprisoned without charge or trial.

Many of us allege that British intelligence was directly involved before and during our rendition. Others maintain they were tortured and abused in front of MI5 agents. All of us affirm that British agents regularly interrogated us, with full knowledge of the torture and conditions. Nine of the claimants in this case are British citizens; the others have long-term connections to the UK and in some cases had been legally resident here for decades.

All of the men allege that they were forcibly stripped naked, paraded like animals in front of others, regularly beaten, kept for extended periods in isolation and held incommunicado for the duration. This is just a tiny sample of what some of the claimants are alleging. There is much more — so much more that the Government decided to settle with us rather than see its reputation as an upholder of human rights tarnished even more.

I spent three years in Bagram and Guantánamo. I was subjected to the sounds of a screaming woman whom I believed was my wife being tortured. I witnessed the beating to death of two prisoners, and spent two years in solitary confinement, before returning home to meet the three-year-old son I had never seen before.

According to the terms of the settlement, no claimant knows what the other has been offered, and we are certainly not permitted to discuss it. But it would be safe to say none of us got even a fraction of the £6.5m awarded by the Canadian government to Maher Arar, who is the only comparable litigant. Despite the grand claims being made in the press, I’m no millionaire.

We understand the aversion some people have to us receiving anything, but the Government was always going to lose this case. They had to settle, because, as with the two unjust and immoral wars in which untold numbers of innocent people have been killed, wounded and displaced, the Government subjugated itself to the policies of other countries.

Earlier this month, the former US president George W. Bush released his memoir and defended waterboarding. He insisted that waterboarding of suspected terrorists by the CIA saved British lives by preventing terrorist attacks on Heathrow and Canary Wharf. He offered no credible evidence for his claim.

In 2002, the CIA told me about the fate of a man they had interrogated before me, saying that I would meet the same end if I failed to comply. When Ibn al-Shaykh al-Libi was captured by the US, he was trumpeted as the most senior al-Qa’ida figure in custody at the time. He was then rendered to Egypt where he was waterboarded and made a confession that was used as a major justification to invade Iraq. Al-Libi told his US interrogators that he was working with Saddam Hussain on obtaining chemical and biological weapons. This information was presented by Colin Powell as “credible evidence” to the UN Security Council in 2003 as a tangible link between al-Qa’ida and the Iraqi regime. It was a fabrication — and, eventually, the UN knew it. There were no WMDs in Iraq and no al-Qa’ida presence there before the invasion.

I told MI5 agents what I had been threatened with. They responded by saying that they could do nothing, and that I should just co-operate with the Americans. What would they have done if I had been waterboarded into giving such a confession? Waterboarding is a crime. The man who ordered this in our times was Britain’s closest ally, even as we were being abused. I have no doubt that he — and his henchmen — ordered that, too. And I have even less doubt that the Government knew exactly what was happening, because British intelligence agents were there at every leg of the journey on the road to Guantánamo.

We started this action not for the money, but to get our lives back, to repay our friends and relatives and to remove the stigma of being “terrorism suspects”. Most of all, we wanted the last remaining British prisoner, Shaker Aamer, reunited with his family. That is why he is one of the claimants in absentia — and why we told the Government that having Shaker back was more important to us than any amount they were offering in settlement. We are pleased to see the Government has now agreed to step up its efforts to bring home the last Briton held at Guantánamo as a priority.

We agreed to settle because we do not want to have to relive this episode indefinitely for years on end. To me, this is at least a partial victory. They would not have paid up if they thought they could win. British complicity in torture goes well beyond the Guantánamo cases. Cageprisoners intends to submit its findings of 29 such cases to the Gibson inquiry.

Note: A longer version of this article appears on the Cageprisoners website.

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.

The report echoes my own complaints about the Obama administration’s poor response to the challenge of cleaning up after the brutal and chaotic arrogance of the Bush years, with regard to human rights and the so-called “War on Terror.” The authors criticize the Obama administration’s reliance for its detention policies on the Authorization for Use of Military Force, the founding document of the phony “war,” which equates soldiers with terrorists, but fails to treat terrorists as criminals, and continues to be used as an excuse for indefinite detention. The report also lambasts the administration for its unconscionable delays in releasing prisoners from Guantánamo who are not regarded as significant terrorist suspects, and also focuses on recent court activity in a case that I have not had the opportunity to deal with: that of Obaydullah (aka Obaidullah), a largely insignificant minor Afghan insurgent who has found himself held for years in an unacceptable legal limbo, charged in a military commission system that is barely functioning, and yet unable to challenge his detention through a habeas corpus petition. The report also focuses on the administration’s refusal to acknowledge that grievous errors were made in the case of Maher Arar, an innocent Canadian who was subjected to “extraordinary rendition” and torture in Syria on little more than a whim, and also dares to ask why it is that men like Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, is still held without trial, over seven years after his capture.

USA: Normalizing delay, perpetuating injustice, undermining the “rules of the road”: Adherence to international human rights must be central to security strategy

Amnesty International, AI Index: AMR 51/053/2010, June 23, 2010

And we reject the notion that lasting security and prosperity can be found by turning away from universal rights … our support for universal rights is both fundamental to American leadership and a source of our strength in the world.
President Barack Obama, National Security Strategy, May 2010

Acting to give real meaning to words could be said to be at the heart of the human rights project begun in 1948. Adopting the Universal Declaration of Human Rights 62 years ago, the international community pointed to its text as a “common standard” — not for mere recitation, but for actual “achievement”. Fulfilling, not simply repeating, the words of the Universal Declaration was, and must still be, the aspiration “for all peoples and all nations” as the “foundation of freedom, justice and peace in the world”.

The USA has long displayed a particular fluency in the language of human rights, but its own actions, often couched in terms of domestic values, have frequently fallen short of its international obligations. This unfortunately remains the case today in respect of detentions, trials, accountability and remedy in the counter-terrorism context.

In the National Security Strategies issued under President George W. Bush in 2002 and 2006, the USA promised to champion the “non-negotiable demands of human dignity”, including the “rule of law” and “equal justice”, even as it sought to keep detainees it labeled as “enemy combatants” in a global “war on terror” from judicial supervision and pursued interrogation techniques and detention conditions that violated the international prohibition of torture and other cruel, inhuman or degrading treatment. Clearly the administration considered “human dignity” during this period to mean something quite different from the understanding most governments around the world, including many of the USA’s closest international partners, and international human rights bodies, had held for decades.

The latest National Security Strategy released by the White House on 27 May 2010 [PDF] also makes promises on human rights and human dignity, some general, some specific. Generally, the strategy asserts, one of four “enduring national interests” for the USA is ensuring “respect for universal values at home and around the world”. In addition, it asserts that the “rules of the road must be followed and there must be consequences for those nations that break the rules”, such as on their “human rights commitments”. More specifically, it reiterates among other things that torture is prohibited “without exception or equivocation”. While this is welcome, some other parts of the security strategy, such as its restatement of the Obama administration’s decision to retain military commission trials and indefinite detention without charge or criminal trial for use against selected terrorism suspects, are not:

When we are able, we will prosecute terrorists in Federal courts or in reformed military commissions that are fair, legitimate, and effective. For detainees who cannot be prosecuted — but pose a danger to the American people — we must have clear, defensible, and lawful standards. We must have fair procedures and a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.

As the legal authority for such detentions, the US authorities continue to rely upon the Authorization for Use of Military Force (AUMF), a broad resolution passed after little genuine debate by Congress in the immediate wake of the attacks of 11 September 2001. Because of the human rights violations that have been committed in the name of the AUMF over the years, Amnesty International has called since 2006 for its revocation. When the Obama administration took office, the organization called on it to clarify that it would not interpret the AUMF as representing any intent on the part of Congress to authorize violations of international human rights or humanitarian law, or as otherwise providing authority for such violations.

Closure of the detention facilities at the US Naval Base in Guantánamo Bay, Cuba, is a goal repeated in the National Security Strategy, with the stated purpose not necessarily to respect and ensure human rights per se, but rather “to deny violent extremists one of their most potent recruitment tools.” A human rights approach to ending the Guantánamo detentions would include the principle that any detainee not charged with a recognizable criminal offence for trial under fair procedures in an independent and impartial court — not a military commission with impoverished due process guarantees reserved for foreign nationals alone — should be immediately released, while ensuring that no one is forcibly returned to a country where he would face human rights violations. The US authorities should drop any intention to construct a system for indefinite “national security” detention without criminal trial of anyone who is not recognised as a prisoner of war in connection with an international armed conflict. To simply move the detention practices put in place at Guantánamo to some other location would be as hollow a gesture as would be pronouncing the terms of universal human rights while depriving them of any real meaning or effect.

A human rights approach is the one most likely to encourage constructive international cooperation with those partners who themselves profess to adhere to the principles of human rights and rule of law. A senior US Justice Department official [Assistant Attorney General David Kris] stated recently:

[S]ome countries won’t provide us with evidence we may need to hold suspected terrorists in law of war detention or prosecute them in military commissions. In some cases, they have agreed to extradite terrorist suspects to us only on the condition that they not be tried in military commissions. In such cases, use of federal courts may mean the difference between holding a terrorist and having him go free.

International cooperation is a theme that runs through the May 2010 National Security Strategy.

Redefining “prompt”

It is a basic principle of international human rights law that anyone deprived of his or her liberty by arrest or detention be entitled to challenge the lawfulness of their detention in a court. The purpose of this provision, including as articulated in article 9.4 of the International Covenant on Civil and Political Rights (ICCPR), is so that an independent and impartial court can rule “without delay” on the lawfulness of the individual’s detention and order his or her release if the detention is unlawful. Promptness of action is an essential ingredient. Allowing governments to take timeliness or judicial enforceability out of the equation would make a mockery of this protection against arbitrary detention.

The USA criticizes other governments for their failure to stick to the “rules of the road” on judicial review of detentions. For example, in its most recent assessment of the human rights records of other countries, an annual assessment compiled by the US Department of State which uses the Universal Declaration of Human Rights as its benchmark, the USA takes issue with Egypt’s Emergency Law. Under this law, the USA reports, an individual may be detained without charge or trial “for as long as 30 days, after which a detainee may demand a court hearing to challenge the legality of the detention order”. In similar vein, the USA criticizes Malaysia’s Internal Security Act (ISA):

The ISA empowers police to arrest without a warrant and hold for up to 60 days any person who acts “in a manner prejudicial to the national security or economic life of Malaysia.” During the initial 60 day detention period in special detention centers, the ISA allows for the denial of legal representation and does not require that the case be brought before a court. The home minister may authorize further detention for up to two years, with an unlimited number of two-year extensions to follow. In practice the government infrequently authorized ISA detention beyond two two-year terms. However, in one case the government detained an ISA detainee for approximately seven years.

For the past eight and a half years, the USA has been holding people in indefinite military custody at Guantánamo Bay. Scores remain held without charge or criminal trial there today. Moreover, two years after the US Supreme Court ruled in Boumediene v. Bush [PDF] that those held at the naval base had the right to a “prompt” habeas corpus hearing in US District Court to challenge the lawfulness of their detention, a majority remain without any ruling on the merits of their cases [The Supreme Court stated, “While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing”]. For example, none of the 14 men who were transferred to Guantánamo in early September 2006 from up to four and a half years held incommunicado in secret CIA custody have had rulings on the merits of their challenges.

“Prompt”, it seems, has lost any reasonable meaning for the US authorities — part of the damage to respect for universal human rights principles wrought by the USA’s conduct in what it views as a global “war” against al-Qa’ida and associated groups. Prompt apparently no longer means “without delay” in this context, but something entirely opposite. And even a judicial order for the immediate release of a detainee does not necessarily lead to the individual’s liberty being promptly restored, notwithstanding the express agreement of the USA to article 2.3(c) of the ICCPR by which it, in the clearest possible terms, committed to “ensure that the competent authorities shall enforce such remedies when granted.”

A court’s power to obtain the immediate release of an unlawfully held individual must be “in its effects, real and not merely formal” [UN Human Rights Committee, A v. Australia, Communication No. 560/1993. UN Doc CCPR/C/59/D/560/1993 (30 April 1997), para. 9.5, emphasis added]. However, the US District Court has effectively been reduced to issuing recommendations in the Guantánamo habeas corpus litigation. For even those Guantánamo detainees who have had judicial rulings in their favour are not guaranteed immediate release, and some have been held for months after such rulings as the USA has appealed the rulings (frequently, to engage in protracted and speculative arguments about the scope of possible grounds for detention — drawn out proceedings caused by the absence of any actual specific reference to detention in the AUMF and further demonstrating how woefully the US indefinite detention regime has failed to fulfil the requirement of article 9.1 of the ICCPR that “No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law”).

The US authorities have also refused to release in the US mainland those who cannot be repatriated for fear of the human rights violations they would face in their home countries. In 36 of the 50 cases so far decided, the detention was found to be unlawful. Thirteen of these 36 men remain in Guantánamo.

One of the most recent such decisions involves the case of Mohamed Mohamed Hassan Odaini, a Yemeni national, who has been held in Guantánamo without charge or trial since June 2002 after being taken into custody as a 17-year-old in Pakistan two months earlier. For more than seven years, the only review of his detention was executive not judicial. Even favourable executive findings did not lead to his release, demonstrating the need for enforceable judicial oversight. In April 2004 a member of the Pentagon’s Criminal Investigation Task Force reviewed Mohamed Odaini’s case and recommended that he be released. In 2007, Mohamed Odaini’s US lawyer was informed that his client had been approved for release from Guantánamo under executive review procedures initiated in 2004 by the Bush administration. In June 2009, his lawyer was told that he had been approved for release under the executive review conducted by the Guantánamo Review Task Force, established under President Obama’s 22 January 2009 executive order on closing the Guantánamo detention facility. Still Mohamed Odaini remained in custody.

The judicial review to which Mohamed Odaini had been entitled for years came to fruition in 2010. On 26 May 2010, over eight years after being taken into custody and nearly two years after the US Supreme Court’s Boumediene ruling, District Court Judge Henry Kennedy found Mohamed Odaini’s detention to be unlawful and ordered his release. Judge Kennedy wrote that the US authorities had

kept a young man from Yemen in detention in Cuba from age eighteen to age twenty-six. They have prevented him from seeing his family and denied him the opportunity to complete his studies and embark on a career. The evidence before the Court shows that holding Odaini in custody as such great cost to him has done nothing to make the United States more secure. There is no evidence that Odaini has any connection to Al Qaeda.

A month after the decision, Mohamed Odaini remains at Guantánamo, his release already years overdue. In his 26 May ruling, Judge Kennedy ordered the US administration to take “all necessary and appropriate diplomatic steps to facilitate Odaini’s release forthwith” and to report back to the court by no later than 25 June 2010 on the detainee’s status. Even now it is not clear what will happen to Mohamed Odaini given that President Obama in January 2010 ordered a suspension of any transfers to Yemen of Yemeni nationals held in Guantánamo, citing security concerns. The authorities have said that no Yemeni national will be repatriated until this moratorium is lifted [PDF]. Anonymous US administration officials are reported to have said that the administration is considering partially lifting the moratorium in the wake of Judge Kennedy’s ruling. [Note: In a letter to President Obama Mohamed Odaini’s sister wrote, “I speak to you in all the languages and dialects of the world to look to this family with eyes of mercy and sympathy. This family’s main and greatest concern is the return of their son whose long absence made us miss him much more. We knew him as a loving brother and a caring sibling whose parents have been deprived of this love. A missing brother we pray he comes back safe to us”].

Amnesty International continues to call for Mohamed Odaini to be immediately repatriated to Yemen. If there is some legitimate reason why this cannot happen immediately, and immediate release in an appropriate third country is also not possible, Mohamed Odaini should be released in the USA with all necessary assistance and protection to re-establish his life. Indeed, while reparation for the harms done to Mohamed Odaini may seem less pressing than respect and fulfilment of his human right to immediate release, it is worth noting that article 9.5 of the ICCPR expressly provides that “Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.”

Normalizing delay

The USA’s sense of timing and justice also appears to have generally been warped in the case of those Guantánamo detainees it says it intends to prosecute under its global war framework.

The Obama administration, like its predecessor, has sought to entirely block post-Boumediene judicial review in the case of those detainees whom the government has moved to prosecute, even when trial proceedings are not brought within a reasonable time or are proposed under the highly contentious military commission system. A case in point is that of Obaydullah, an Afghan national held in Guantánamo since October 2002 [Prior to this, he was held in Bagram air base in Afghanistan after being taken into US custody there in July 2002]. A post-Boumediene habeas corpus petition challenging the lawfulness of his detention was filed in US District Court in July 2008. Two months later, charges were sworn against Obaydullah under the Military Commissions Act (MCA) of 2006. Two years later, he has neither been tried nor had his habeas corpus petition heard and ruled upon.

After Obaydullah was charged under the MCA, the Bush administration moved to have his habeas corpus petition dismissed or held in abeyance until completion of the military commission proceedings against him. In December 2008, District Court Judge Richard Leon granted the government’s motion and stayed the habeas corpus proceedings. By the time the Obama administration took office in January 2009, the charges against Obaydullah had still not been referred on for trial, and the new administration obtained a suspension of all military commission proceedings while the Guantánamo Review Task Force established by President Obama set about reviewing the Guantánamo detentions. Given the suspension of trial proceedings, Obaydullah’s habeas corpus counsel moved to have the stay on his habeas corpus challenge lifted arguing that “it could be several months or years before he is subjected to such a [trial] proceeding, if at all”. The Obama administration opposed the motion, arguing that the charges against Obaydullah “still remain pending”. On 22 April 2009 Judge Leon refused to lift the stay. Another year has passed since then with the Obaydullah case in limbo.

The case was appealed to the US Court of Appeals for the DC Circuit. In January 2010, the Obama administration told the Court that the Guantánamo Review Task Force had completed its review and that the Attorney General had determined that prosecution in a military commission was “appropriate” for Obaydullah. The government’s brief said that this meant that the “prior cause of delay in the decision as to whether to refer the charges in this case has been lifted”. Five months later, however, the charges against Obaydullah have still not been referred on for trial.

In an opinion released on 18 June 2010 — with Obaydullah soon to enter his ninth year in US military custody — the Court of Appeals revisited the question of the “prompt” habeas corpus hearing to which the US Supreme Court had said two years earlier that the Guantánamo detainees were entitled [PDF]. While not entirely decoupling the habeas corpus question from the trial question, the Court of Appeals noted that the government had given no indication as to whether the charges against Obaydullah would in fact be referred on for trial or, equally important, if so, when. It further noted that under the revised MCA of 2009 there was no deadline upon the convening authority to make a decision as to whether to refer charges on for trial or not. It also noted that under revised rules for military commissions issued by the Pentagon in April 2010 the requirement articulated in the 2007 version of the rules for such a decision to be made “in a prompt manner” had been dropped. The Court of Appeals added:

[O]f course, the charges may be referred to a military commission tomorrow — which could raise anew the question of possible abstention [of the District Court from habeas review] — but they may also be dropped tomorrow, or remain pending for months or years to come. Seeing no reason sufficient to justify denying Obaydullah the “prompt habeas corpus hearing” to which he is entitled, we reverse the order of the district court denying his motion and vacate the stay of his habeas corpus petition.

The Court of Appeals sent the case back to the District Court to pursue the habeas corpus proceedings. In the absence of an appeal from the administration, or moves to refer the charges on for trial and a court again suspending consideration the habeas corpus petition, Obaydullah’s challenge on the lawfulness of his detention might eventually be heard. It has already been delayed for years too long.

The National Security Strategy of May 2010 promises “swift and sure justice” in the case of those suspected of terrorist offences. Domestic political considerations are taking the upper hand in ensuring that delays continue, however.

Under the ICCPR, anyone charged for trial has the right to be tried “without undue delay” (article 14.3(c)) in an independent and impartial court (article 14.1). The UN Human Rights Committee, the expert body established under the ICCPR to monitor its implementation, has emphasised that this right is “not only designed to avoid keeping persons too long in a state of uncertainty about their fate … but also to serve the interests of justice.” Uncertainty remains the norm for Guantánamo detainees, however, the interests of justice undermined by domestic politics.

Khalid Sheikh Mohammed was indicted in 1996 in US federal court for his alleged role in the Manila air (or “Bojinka”) plot to blow up a dozen US airliners over the Pacific, and was the subject of a reported US plan at the time of the indictment for the FBI to arrest him in Qatar and transfer him to the USA for trial. He was eventually taken into custody in March 2003 in Pakistan. Rather than being extradited and brought to trial in the USA, however, he was summarily handed over to US agents and held in secret CIA custody for the next three and a half years and subject to enforced disappearance, torture and other cruel, inhuman or degrading treatment authorized at high levels of the US government.

On 6 September 2006, President George W. Bush announced that Khalid Sheikh Mohammed had days earlier been transferred to military detention in Guantánamo where he would face trial. He was eventually charged in February 2008 under the Military Commissions Act of 2008 with involvement in the attacks of 11 September 2001. These charges were pending against him and four other detainees at the time the Bush administration left office in January 2009. The cases sat in stasis for another 10 months until, on 13 November 2009, Attorney General Eric Holder announced that the five men “accused of conspiring to commit the 9/11 attacks” would be transferred for prosecution in federal court in New York, adding that their trials had been “too long delayed”. However, hopes have been dashed that the administration which ordered that the CIA’s long-term secret detention facilities be closed would also act with urgency to release or bring to trial the individuals who had been held in them. Today, over seven months after the Attorney General’s announcement — and over seven years after Khalid Sheikh Mohammed was taken into custody — the five men remain in Guantánamo along with more than 170 others.

Confirmation that the certainty of Attorney General Holder’s November 2009 announcement had taken on an elastic quality came when he told the US Senate Judiciary Committee on 14 April 2010 that the administration was reviewing the question of where to prosecute the five detainees — in military commissions or in federal court — and that “no final decision has been made about the forum” in which they would be tried. He said “we expect that we will be in a position to make that determination, I think, in a number of weeks”. What number he had in mind remains a mystery as the weeks have turned into months, leaving the USA on the wrong side of its obligation to bring these men to trial within a reasonable time or release them. There are suspicions now that, for political reasons, the administration may put off the decision until after the mid-term congressional elections in November 2010. This would deepen an already shameful state of affairs and cement a violation of the USA’s international obligations.

The Obama administration has been in office for 17 months. Regardless of the failings of the previous administration, the USA’s failure to ensure within a reasonable time fair trials or release of detainees labelled by the previous administration as “enemy combatants” is unacceptable. A fully functioning civilian judicial system, with the experience, capacity and procedures to deal with complex terrorism prosecutions, was available from day one. Military commissions should long ago have been abandoned in favour of this system.

Perpetuating injustice

The words “effective remedy” are also being drained of meaning by the USA. As a state party to the ICCPR, the USA has undertaken to ensure that anyone whose rights under the treaty have been violated has an effective remedy. As Amnesty International has previously pointed out, this administration, like its predecessor, is blocking remedy for counter-terrorism abuses, in violation of the USA’s obligations. A recent example concerns Maher Arar.

On 14 June 2010, the US Supreme Court announced that it was refusing to consider the case of Maher Arar, a denial that gave the administration what it had asked for in a petition filed with the Court in May [see here for the court documents from January 2004 onwards]. The Supreme Court’s failure to take the case means that the ruling of the US Court of Appeals for the Second Circuit is allowed to stand. In November 2009, the Second Circuit had dismissed the lawsuit brought by Maher Arar, a dual Canadian/Syrian citizen who was arrested at a New York airport in September 2002 while travelling on a Canadian passport en route home to Canada from vacation in Tunisia. After 12 days held incommunicado by the US authorities, he was sent, via Jordan, to Syria, where he was held for a year, including 10 months in a small underground cell. A Canadian judicial commission later concluded that he was subjected to torture during that time. His lawsuit claimed that the US officials conspired to send him to Syria for the purpose of interrogation under torture, and provided Syria with information and questions for the interrogation.

In the face of a dissent by four of the Second Circuit judges arguing that the ruling “risks a government that can interpret the law to suit its own ends, without scrutiny”, the majority ruling stated that “it is for the executive in the first instance to decide how to implement extraordinary rendition, and for the elected members of Congress — and not for us judges — to decide whether an individual may seek compensation from government officers and employees directly, or from the government, for a constitutional violation”.

The right to an effective remedy is recognised in all major international and regional human rights treaties. The UN Human Rights Committee has affirmed that this right can never be derogated from, even during times of national emergency. International law requires that remedies not only be available in law, but accessible and effective in practice. Victims are entitled among other things to equal and effective access to justice (including “effective judicial remedy”) regardless of who may ultimately be responsible for the violation; adequate, effective and prompt reparation for harm suffered; and access to relevant information concerning violations and reparation mechanisms. Full and effective reparation includes restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.

In its May 2010 petition to the US Supreme Court urging it not to take the Arar case, the Department of Justice argued that the lawsuit implicates “significant national security concerns”, and judicial intervention would “call upon the courts to review sensitive intergovernmental communications, second-guess whether Syrian officials were credible enough for United States officials to rely on them, and assess the credibility of any information provided by foreign officials concerning [Maher Arar’s] likely treatment in Syria, as well as the motives and sincerity of the United States officials who concluded that [he] could be removed to Syria consistent with Article 3 of the [UN Convention against Torture]”. The Second Circuit had properly concluded, the government brief went on, that this litigation would interfere with foreign relations and the government’s ability to ensure national security.

Its litigation strategy to seek to block judicial remedy for human rights violations endured by such detainees leaves the impression that the protection of executive power and the promotion of immunity from real accountability to victims of human rights violations are being prioritized, just as they were under the previous administration. While far from satisfactory, now that it has successfully blocked judicial remedy for Maher Arar, there can no longer be any excuse for the total failure of US administrative and legislative authorities to take effective measures to meet its international obligations to victims of human rights violations for which the USA bears responsibility [In its brief to the US Supreme Court, the US administration asserted that the Court’s refusal to take the case would not leave “executive power unbounded”. It continued: “While the aggrieved party may have no private remedy for money damages, if the executive in fact has exceeded his appropriate role in the constitutional scheme, Congress enjoys a broad range of authorities with which to exercise restraint and balance”]. The current situation, with Maher Arar remaining entirely without effective remedy or reparation from any US authority, is flagrantly inconsistent with, and a continuing violation of, US human rights obligations [By contrast, Maher Arar was provided by Canada with a judicial inquiry and ultimately a formal apology from the government and monetary compensation for the responsibility of Canadian authorities in relation to his case].

The occasion of the annual international day [in support of] victims of torture on 26 June would seem a particularly pertinent time for the USA to begin to end this remedy and accountability vacuum. It is now seven years since President Bush marked this date in 2003 with a statement that amounted to rank hypocrisy:

Notorious human rights abusers … have long sought to shield their abuses from the eyes of the world by staging elaborate deceptions and denying access to international human rights monitors …The United States is committed to the worldwide elimination of torture, and we are leading this fight by example. I call on all governments to join with the United States and the community of law-abiding nations in prohibiting, investigating, and prosecuting all acts of torture and in undertaking to prevent other cruel and unusual punishment … The suffering of torture victims must end, and the United States calls on all governments to assume this great mission.

Three months earlier, Khalid Sheikh Mohammed had been subjected in secret US custody 183 times to the torture technique known as water-boarding. The secret detention program had been authorized by President Bush.

Without a doubt, there has been a positive change in tone on human rights and engagement with the international community under the Obama administration. The fact that the CIA program such as it was under the Bush administration is now believed to have been ended, and the agency’s use of “enhanced” interrogation techniques stopped, is welcome. The fact is, however, there has been zero accountability and remedy for the violations, including crimes under international law, committed under the program.

Responding to the recent events in his case, Maher Arar has told Amnesty International of his view that: “This Supreme Court decision, along with lower court’s rulings, essentially gives the green light to the US administration to engage in torture without any fear of ever being prosecuted.” Similar to what the administration has said in other litigation, and what the White House has stated in its May 2010 National Security Strategy, the Justice Department’s brief to the Supreme Court on the Arar case asserted that the case did “not concern the propriety of torture or whether it should be ‘countenanced’ by the courts.” Torture, it said, “is flatly illegal and the government has repudiated it in the strongest terms … The President has stated unequivocally that the United States does not engage in torture”.

Amnesty International has welcomed the promises made by the Obama administration that it will not torture. This promise is not enough, however. The USA is obliged under international law not only to prevent those who act on its behalf from committing, participating in, tolerating, acquiescing in, or otherwise being responsible for any act of torture or other cruel, inhuman or degrading treatment, as defined under international law — as well as other human rights violations such as enforced disappearance, secret detention, and arbitrary detention — but to investigate and hold accountable those responsible for authorizing and carrying out such violations in the past, including by bringing those responsible for crimes under international law to justice.

In its National Security Strategy, the administration asserts that “We are working within the broader UN system and through regional mechanisms to strengthen human rights monitoring and enforcement mechanisms, so that individuals and countries are held accountable for their violation of international human rights norms.” The USA’s failure to ensure accountability and remedy for its own conduct is leaving its positive words on torture ringing somewhat hollow, as similar words rang hollow under the previous administration.

Time to adhere to the “rules of the road”

The USA must review the full range of its conduct in the counter-terrorism context to ensure that its human rights obligations are being met. The Guantánamo detentions have become mired in a domestic US political context in which over the short-term it may seem less costly to invoke concepts such as “national security” or “global war” to justify deep departures from the USA’s human rights commitments, than to confront and remedy the human rights violations of the past and present.

The USA should adhere to the “rules of the road” on human rights, not continue to undermine them via the distorting lens of its global “war” paradigm, under which domestic political considerations and sweeping and ever-growing national security arguments are being driven into a head-on collision with the universal principles of human rights, justice, and the rule of law.

Note: According to news reports today, the Obama administration will be released Mohammed Hassan Odaini soon. For further information about some of the themes and cases discussed in the Amnesty International report, see the following:

For Mohammed Hassan Odaini, see my articles, Why is a Yemeni Student in Guantánamo, Cleared on Three Occasions, Still Imprisoned? and Obama Thinks About Releasing Innocent Yemenis from Guantánamo, and for a comprehensive list of all the habeas cases so far decided, see Guantánamo Habeas Results: The Definitive List, which contains links to my detailed archive of articles and to the judges’ unclassified opinions. For my criticism of the Authorization for Use of Military Force, see Guantánamo and Habeas Corpus: 2 Years, 50 Cases, 36 Victories for the Prisoners. For the military commission charges against Obaidullah, see Guantánamo trials: another insignificant Afghan charged and Afghan Nobody Faces Trial by Military Commission. For the proposed trial of Khalid Sheikh Mohammed and others, and my criticism of the military commissions, see The Logic of the 9/11 Trials, The Madness of the Military Commissions, and for a response to the recent refusal of the Supreme Court to take Maher Arar’s case, see Obama, the Supreme Court and Maher Arar: No Accountability for Torture.

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.

He Was Tortured, But He Can’t Sue
By David Cole, New York Review of Books, June 15, 2010

On Monday, June 14, the Supreme Court declined to hear Maher Arar’s case, conclusively shutting the door on the Canadian citizen’s effort to obtain redress from US officials who stopped him in September 2002 while he was changing planes on his way home to Canada and shipped him instead to Syria, where he was tortured and imprisoned without charges for nearly a year. In so ruling, the Court refused to reconsider the decision of the US Court of Appeals for the Second Circuit, sitting en banc, which had ruled in November 2009 [PDF] that Arar’s case raised too many sensitive issues of national security and confidential information to permit its adjudication in a court of law. If he is to obtain any remedy now, it must come from Congress and the President. The courts have washed their hands of the affair, but that does not mean that it is resolved.

I am one of Arar’s lawyers, along with others at the Center for Constitutional Rights in New York. In twenty-five years as a civil rights and human rights lawyer, I have never handled a case of more egregious abuse. US officials not only delivered Arar to Syrian security forces that they regularly accuse of systematic torture, but did everything in their power to ensure that Arar could not get to a court to challenge their actions while he was in their custody. When they finally permitted him to see a lawyer, on a Saturday ten days into his detention, the government hastily scheduled an extraordinary hearing for the next night — Sunday evening — and only “notified” Arar’s lawyer by leaving a voicemail on her office answering machine that Sunday afternoon. They then falsely told Arar that the lawyer had declined to participate, and questioned him for six hours, until 3 a.m. Monday.

When Arar’s lawyer retrieved the voicemail message later that Monday morning, she immediately called the Immigration and Naturalization Service. They told her falsely that Arar was being moved to New Jersey, and that she could contact him there the next day. In fact, he remained in New York until late that night, when he was put on a federally chartered jet and spirited out of the country. US officials never informed Arar’s lawyer that he had been deported, much less that he had been delivered to Syrian security forces.

Arar was beaten and tortured while Syrian officials asked him questions virtually identical to those US officials had asked him in New York. He was locked up for a year without charges and in complete isolation, most of the time in a cell the size of a grave. After a year, Syria released him, finding no evidence that he had done anything wrong. He returned to Canada — this time avoiding any change of planes in the United States.

Canada responded to Arar’s case as a nation who has wronged a human being should. It established a blue-ribbon commission to investigate his case, which wrote a 1,100-page report fully exonerating Arar, and faulting Canadian officials for erroneously telling US officials that Arar was the target of an investigation into possible al-Qaeda links. In fact, Arar was merely listed as one of many persons “of interest” to the investigation, because he was thought to know one of the individuals who was targeted. The commission found, however, that Canadian officials did not know that the United States was planning to send Arar to Syria. That decision was made by US officials with the Syrians and not shared with the Canadians.

Canada, in other words, played a relatively small part in Arar’s injuries, as compared to the United States. Yet Canada’s Parliament issued a unanimous apology, and the government paid Arar $10 million (Canadian) for its role in the wrong done to him.

Here in the United States, the response could not have been more different. US officials have never apologized to Arar. They persist in leaving him on a “no-fly” list, despite the fact that Canada has cleared him of any suspicion, much less wrongdoing. And when we filed suit in 2004 to seek damages from the US officials directly responsible for the decision to send Arar to his torturers, lawyers for the Bush administration argued that even assuming that federal officials had intentionally delivered Arar to Syria to be tortured, and blocked him from seeking court protection while he was in their custody, they could not be held liable for his injuries on the grounds that the case implicated secret communications and national security concerns not appropriate for court resolution.

Regrettably, the courts agreed with the Bush administration position — and so has Obama’s Department of Justice. The US Court of Appeals for the Second Circuit reasoned that hearing Arar’s claims would present too many sensitive issues that courts were ill-equipped to decide. These included, according to the court, the perceived need for the [extraordinary rendition] policy, the threats to which it responds, the substance and sources of the intelligence used to formulate it, and the propriety of adopting specific responses to particular threats in light of apparent geopolitical circumstances and our relations with foreign countries.

But these questions would be presented only if it is permissible under some set of circumstances for the United States to send a man to another country for the purpose of having him tortured — as Arar alleged happened in his case, and as the courts were required to take as true for purposes of deciding whether his case should be dismissed at the outset. Even the Bush administration lawyers did not argue that sending Arar to be tortured was permissible. Torture is directly contrary to US law and policy. Thus, there can be no “perceived need” for rendering a man to a foreign country to have him tortured, regardless of the “threats to which it responds,” the “geopolitical circumstances,” our “relations with foreign countries,” or the “intelligence” that might underlie it. If, as US law provides, torture is absolutely forbidden, none of the above “sensitive” issues need to be decided.

In addition, the United States did not dispute that if, as was his legal right, Arar had been able to get his claim before a court while he was being detained in the United States — before he was sent to Syria — the federal courts would have entertained his case and could have stopped his rendition. Congress has expressly authorized the courts to review immigration decisions and to bar removal of foreign nationals to any country where they face a risk of torture. Knowing that, US officials made sure Arar could not get to court — denying his initial requests for a lawyer, lying to him and his lawyer, and then flying him out of the country in the dead of night before he or his lawyer could file anything. Arar therefore sought the only remedy left — damages for his injuries. The Second Circuit never explained why Arar’s case, which indisputably could have been adjudicated had he been able to seek review before he was removed, suddenly became too “sensitive” once Arar sought damages for injuries incurred as a result of that removal.

Bush administration officials sent Arar to be tortured, and Bush administration lawyers initially sought to have his damages suit dismissed. But nothing changed when President Obama took office. The Obama administration aggressively defended the Second Circuit’s decision to throw Arar’s case out of court. It opened its brief to the Supreme Court with a paragraph reiterating that torture is never permissible, but then went on to argue at length that federal officials accused of torture should not be held accountable.

In this, the Obama administration’s brief eerily echoed one of the Bush administration’s own “torture memos.” After retracting John Yoo’s infamous August 2002 memo authorizing waterboarding, the Bush administration in December 2004 replaced it with a new memo that opened with the proclamation: “Torture is abhorrent both to American law and values and to international norms.” As we now know, however, that memo went on to approve of the very same torture tactics that Yoo’s memo had approved — including waterboarding. So, too, Obama’s Justice Department opened its brief [PDF] by proclaiming that torture is always forbidden, but then defended a ruling that said that those who send an innocent man to be tortured cannot be held liable for their actions.

In President Obama’s May 2009 speech on national security and American values, he opposed a commission to investigate torture by arguing that there were proceedings in the courts that could provide accountability. Yet in the Arar case — as in every other civil case that has sought accountability for torture — the Obama administration argued that the courts were not an appropriate forum. To the Obama administration, defending government officials from suit, regardless of the gravity of the allegations, is evidently more important than holding individuals responsible for complicity in torture.

By refusing to hear the case, the Supreme Court has now effectively upheld the Bush and Obama administration positions. The court’s decision has no value as a precedent, because it is merely a decision not to take up the case on its merits. But it is the end of the line for Arar in the courts. It must not be the end of the line for the United States, however. Canada’s legislature and government did the right thing by Maher Arar without a judicial decision. So, too, the United States Congress apologized to the Japanese and Japanese Americans who were interned on the basis of their race during World War II — even though the Supreme Court had years earlier upheld the internment as legal. It took Congress more than 40 years to do right by the World War II internees. We must do better this time around.

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.

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

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

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

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

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

C.  Proxy detention sites

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

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

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

1.  Jordan

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

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

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

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

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

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

2.  Egypt

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

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

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

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

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

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

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

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

3.  Syrian Arab Republic

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

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

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

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

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

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

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

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

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

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

4.  Morocco

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

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

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

5.  Pakistan

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

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

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

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

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

6.  Ethiopia

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

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

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

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

7.  Djibouti

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

8.  Uzbekistan

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

D.  Complicity in the practice of secret detention

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

E.  Secret detention and the Obama administration

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

The Obama Administration has adopted the following specific measures:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The sentences for the Americans were delivered in absentia, as the US refused to extradite any of the men and women involved, but, as the first legal ruling anywhere in the world on the program of “extraordinary rendition” at the heart of the Bush administration’s “War on Terror,” the verdict is enormously significant. In the words of Armando Spataro, the Italian prosecutor who led the five-year investigation that culminated in the trial and the ruling, “It’s clear that the kidnapping of Abu Omar was a great mistake. It did serious damage in fighting terrorists because we don’t need torture, we don’t need renditions, we don’t need secret prisons.”

In a revealing interview after the ruling was delivered, former CIA officer Sabrina deSousa, one of those convicted, told ABC News that the United States “broke the law” in kidnapping Abu Omar and that “we are paying for the mistakes right now, whoever authorized and approved this.” She said the US “abandoned and betrayed” her and her colleagues, and pointed out that those who should have been held to account were the senior Bush administration officials who approved the program in the first place. As she explained, “Everything I did was approved back in Washington.”

DeSousa’s role in Abu Omar’s rendition does not appear to be in doubt. Although she stated that she was “on a ski trip on the actual day of the kidnapping,” Italian prosecutors said that she “helped organized the kidnapping using her diplomat cover at the US Consulate in Milan,” and this was confirmed by “several former US intelligence officials,” who spoke to ABC News. Nevertheless, although the former CIA station chief in Milan, Robert Seldon Lady, received an eight-year sentence, his was the most senior head to roll, and it is significant that Jeffrey Castelli, the CIA station chief in Rome, described by “several former CIA officers” as the “architect” of the kidnapping, was acquitted by the court, which “ruled that he and two others had diplomatic immunity because they worked out of the US Embassy in Rome.” As a result, deSousa undoubtedly had a point when she complained that “her status as a State Department diplomat should have protected her, but that the US refused to invoke diplomatic immunity.” Five senior Italian officials — including Nicolo Pollari, the former head of Italy’s military intelligence service, and his deputy — also escaped convictions, because the judge accepted that the evidence against them was subject to official secrecy restrictions.

Speaking to ABC News, US officials blamed the CIA for the “sloppy” tradecraft that led to the agents being identified. Former CIA officer Bob Baer stated, with obvious incredulity, “They were using e-mail, they were calling home, the Italians were able to connect their credit cards with true names and true addresses.” Contrasting his own activities during the Reagan administration, Baer added, “When we did a rendition, we did it in international waters. The Bush administration threw all caution to the wind.” Baer also pinpointed how the rendition program had become an aberrant project without adequate supervision. “He was the wrong guy,” he said, adding, “It was not worth putting the reputation of the United States on the line going after somebody like this.” Disturbingly, of course, Abu Omar was not the only “wrong guy” rendered to torture by the CIA. There were many others, some of whose stories have still not come to light, and whose whereabouts remain unknown, but one other enlightening example (of a man who was also rendered to Egypt) is the case of Muhammad Saad Iqbal Madni, who was subjected to “extraordinary rendition” and torture in January 2002 based on little more than a whim.

In his regular column for Harper’s Magazine, lawyer Scott Horton contrasted the Italian ruling with the recent ruling in the US Court of Appeals for the Second Circuit in the case of Maher Arar, an innocent Syrian-Canadian national who, in October 2002, was rendered by the US to Syria, where he was held for a year and tortured in the notorious Palestine Branch prison. On November 2, the Court of Appeals dismissed Arar’s case against government officials (including FBI Director Robert Mueller, former Homeland Security Secretary Tom Ridge and former Attorney General John Ashcroft) for their role in his kidnapping, “extraordinary rendition” and torture. As the Washington Post explained, “The appeals court said it cannot let Arar sue the US government without Congress enacting legislation that spells out exactly how a case as unusual as his can be brought and what potential remedy exists. Otherwise, the court said, allowing the lawsuit would ‘offend the separation of powers and inhibit this country’s foreign policy.’”

Describing the contrast between these rulings, Scott Horton explained:

[T]he outcomes could not have been more different. In the New York case, the Court of Appeals bowed to government pressure to refuse to hear the torture victim’s appeal. The decision, rendered by a group of largely Republican judges, is filled with breezy language openly acknowledging that the case turned on an extraordinary rendition, and suggesting that this was simply a policy choice for the government. The Italian court proved zealously independent of government influence from the beginning of the case down to judgment. It viewed extraordinary rendition linked to torture as a particularly grave crime, taking careful note of the historical precedents that supported that perspective. While the court accepted that state secrecy concerns restricted the court’s consideration of certain evidence, it nevertheless proceeded and rested its conclusions on evidence that was not protected. Similarly, the Italian court gave claims of immunity narrow applicability, so that only a handful of defendants could rely upon them. The court took the view that these highly technical defenses would give government actors some comfort, but it rejected the idea that they could escape accountability for a serious crime altogether.

The most telling difference focuses on the rights of the torture victim. The New York court concluded that the victim’s claims were overwhelmed by the government’s interest in protecting political actors against embarrassment. The Italian court insisted not only on the punishment of the perpetrators but also on the compensation of the torture victim. The Milan court sentenced the defendants to pay compensation to Abu Omar and his wife of €1.5 million ($2.3 million).

Quite a contrast, indeed — and one that should shame those in the US judicial system who continue to defend the Bush administration’s crimes, and, it should be noted, in the Obama adminstration itself, where senior officials continue to do all in their power to prevent senior Bush administration officials from being held accountable for their actions.

In a dissenting opinion in the Arar ruling, Judge Guido Calabresi captured the full significance of these failings, when he wrote, “I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay,” adding, “If anything, this decision is a loss to all Americans and to the rule of law.”

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, published in March 2009, details about my film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

Meanwhile, in the world of George W. Bush and Dick Cheney, 242 prisoners at Guantánamo Bay — held, for the most part, for seven years without charge or trial — spent another day in an isolation more profound than that endured by the most dangerous convicted criminals on the US mainland.

Change will come for these prisoners too, and hopefully very soon. In one of his first acts as President, Barack Obama ordered prosecutors in Guantánamo’s Military Commission trials (the much-criticized system dreamt up by Dick Cheney and his close advisers in November 2001) to ask for a four-month stay on all proceedings, “in the interests of justice,” and in order to give “the newly inaugurated president and his administration time to review the military commission process, generally, and the cases currently pending before the military commissions.” He also circulated a draft of an executive order in which he promised to review the cases of the remaining 242 prisoners, and to close Guantánamo within a year.

By Wednesday afternoon, the judges in the cases of Khalid Sheikh Mohammed and four other prisoners accused of planning or facilitating the attacks of September 11, 2001, and Omar Khadr, a Canadian accused of killing US Sgt. Christopher Speer with a grenade during a firefight that led to his capture in Afghanistan when he was 15 years old, acceded to the President’s request, and it seems likely that other judges will follow suit.

However, what will happen over the next four months remains uncertain. As the President weighs up conflicting choices — with some advising him that the federal court system is perfectly well-equipped to deal with the cases of genuinely dangerous prisoners, and others claiming that another brand-new trial system is needed — those who advocate the latter should look closely at the events that took place at Guantánamo in the two days leading up to the inauguration.

To put it bluntly, on January 19 and 20, everything that is wrong with Guantánamo and the Bush administration’s ill-conceived, cruel and inept “War on Terror” was on display in two courtrooms at Guantánamo, where pre-trial hearings were taking place in the cases of Omar Khadr and the alleged 9/11 co-conspirators. And while these hearings, above all, cast a ghastly light on the gathering of intelligence in the “War on Terror,” and its ruinous effect on the lives of those caught up in a global web of rumors, lies and false confessions masquerading as facts, they also demonstrated the obstacles to justice that arise when innovators — of whatever political hue — attempt to replace an ancient and well-established legal system with something new.

The unforeseen empowerment of Khalid Sheikh Mohammed

If the homicidal wing of global jihad has a star, it is Khalid Sheikh Mohammed, the self-confessed mastermind of the 9/11 attacks, whose previous appearances at pre-trial hearings (in June, September and December last year) attracted substantial media attention. Commentators suggested that the timing of this latest hearing was designed to reflect glory on the Bush administration on the eve of Obama’s inauguration, but if this was the case then it was an unmitigated failure.

As with previous hearings, the system itself was plagued with problems, and Mohammed was allowed to dominate proceedings, whereas, if the allegations against him — and his own declarations — are true, he should, instead, be facing a trial in a federal court, where his outbursts would at least be circumscribed.

The hearing began with wrangling over a recent decision taken by the Commissions’ Convening Authority, Susan Crawford, who last week became the first senior official in the Bush administration to admit that a “War on Terror” prisoner in US custody had been tortured. As Reuters explained, in what was apparently intended to be a simple “technical procedure aimed at updating jury pools”, Crawford had “quietly dropped charges in all the pending cases in December and refiled them in early January.” The effect, defense lawyers argued, was to nullify all previous decisions made in the Commissions, requiring that all the cases be started again with new charges and new arraignments. The lawyers also pointed out that, as a retired military judge, Crawford “should have been well aware of the military court rules” when she acted, but the judge, Col. Stephen Henley, concluded that, although Crawford’s orders had been “inartfully expressed” and “negligently executed,” a subsequent affidavit had “made it clear that she had intended only to replace jurors who had retired or moved on to new assignments.”

When the hearing got underway, it was ostensibly to discuss ongoing questions about the mental competency of one of the defendants, Ramzi bin al-Shibh, who, according to court records, is “on undisclosed psychotropic drugs,” as Carol Rosenberg explained in the Miami Herald. Instead, however, the hearing descended into a familiar farce. As the Arabic translators struggled to keep up (another recurring problem), several of the defendants attempted, unsuccessfully, to persuade Henley to move their lawyers, so that they were not sitting at the same table. Even so, Mohammed managed to sneak in a quick reference to torture, as he has done in every other hearing. ”The people who have tortured me received their salaries from the American government, and the lawyers do, too,” he said.

Later, as part of a rambling disquisition, which is allowed because, under the Commissions’ rules, he is permitted to represent himself, Mohammed addressed the desire for martyrdom that has also been prominent in previous hearings. “We don’t care about capital punishment,” he explained. “We are doing jihad for the cause of God.” When Henley directed him to stick to the topic at hand, he countered with, “This is terrorism, not court. You don’t give me the opportunity to talk.” For once, however, Mohammed’s antics were overshadowed by bin al-Shibh, who interrupted legal discussions to exclaim, “We did what we did and we are proud of this. We are proud of 9/11.”

Omar Khadr’s dubious confession

But while the 9/11 pre-trial hearing demonstrated, yet again, that a novel trial system is no match for the federal courts on the US mainland, which have successfully dealt with 107 trials related to terrorism since 9/11 (as described in a Human Rights First report, In Pursuit of Justice (PDF)), the other pre-trial hearing this week — that of Omar Khadr — tackled two other questions at the very heart of Guantánamo’s credibility: whether confessions made in generally abusive circumstances can be trusted at all, and how utterly groundless confessions can, in circumstances of hysteria and fear, come to be regarded as constituting robust “actionable intelligence,” with horrendous knock-on effects on those implicated in these false claims.

These issues were under examination as the result of a long campaign by Khadr’s defense team to have the right to question US personnel who had interrogated Khadr in Bagram and Guantánamo, in an attempt to show that he had only made apparently incriminating statements through coercion, or as an attempt to avoid punishment or gain favors from his interrogators.

The question of dubious confessions arose when a female agent, identified only as “Interrogator 11,” who had interrogated Khadr at Guantánamo, testified that he had admitted throwing the grenade that killed Sgt. Speer. According to the agent, the incident took place after three other men had been killed and Khadr “cowered under a bush as the soldiers moved in,” as a CBC News report explained. “He pulled the pin and just chucked it over his shoulder,” the agent said. “He had never thrown one before, so he just threw it over his shoulder, like he had seen in the movies.”

Although the interrogator claimed that Khadr was “very happy” to speak to her, and that, “when he would come to the room, he was always smiling,” there are three major problems with her story.

The first, as has been demonstrated in several hearings in the last 14 months, is that other reports by eyewitnesses are completely at odds with her account. In November 2007, for example, it was revealed, just 36 hours before Khadr’s trial was supposed to begin, that his defense team had just been informed of the existence of “potentially exculpatory evidence” from a “US government employee,” who was an eye-witness to the gunfight in Afghanistan that led to Khadr’s capture. The news prompted Khadr’s military defense attorney, Lt. Cmdr. William Kuebler, to complain, “It’s an eye-witness the government has always known about.” He also asked, “How much other exculpatory evidence is out there behind the black curtain that we cannot see?” and added that the disclosure was symptomatic of the underlying problem with a system that was “designed to produce convictions.”

Further disturbing revelations followed last year. In March, Kuebler explained that the report of the circumstances that led to Khadr’s capture, written by an officer identified only as “Lt. Col. W.,” had been altered after the event to implicate Khadr, and at another hearing on December 12 a witness identified only as “Soldier No. 2” produced further evidence indicating that Khadr could not have thrown the grenade, explaining that he “was buried under rubble from a collapsed roof before he was captured.” In a motion submitted by Khadr’s lawyers, the soldier stated that he “thought he was standing on a ‘trap door’ because the ground did not seem solid.” He then “bent down to move the brush away to see what was beneath him and discovered that he was standing on a person; and that Mr. Khadr appeared to be ‘acting dead.’” Lt. Cmdr. Kuebler explained that photographs taken at the scene, which were not shown to observers of the trial proceedings, “show a pile of rubble from the collapsed roof, and then show the debris moved aside to reveal Khadr lying facedown in the dirt,” which “make it abundantly clear Omar Khadr could not have thrown the hand grenade that killed 1st Sgt. Speer.”

The second reason for doubting the agent’s account, as CBC News also reported, is that she was “unable to explain why she destroyed her notes of the interrogation sessions after she had typed them up,” which strikes me as deeply suspicious, and the third, which cuts to the heart of the defense team’s doubts about whether any confession by Khadr is reliable, concerns the circumstances of his treatment in Guantánamo at the time the statement was made.

Although a date was not given for when Khadr supposedly made his confession, he was subjected to appalling mistreatment both in Bagram, where he was held for three months after his capture, and in Guantánamo, where he was subjected to an array of abusive techniques — derived from torture techniques taught in US military schools to train US personnel to resist interrogation, and to provide false confessions — which were heavily criticized by the Senate Armed Services Committee in a damning report last month (PDF) that blamed senior administration officials for instigating a pervasive culture of prisoner abuse.

In Khadr’s case, these techniques included prolonged isolation in a freezing cold cell, beatings, and being short-shackled in painful positions until he urinated on himself. On one particularly humiliating occasion, he reported that the guards “poured a pine-scented cleaning fluid over him and used him as a ‘human mop’ to clean up the mess.”

Under these circumstances, it is difficult to see how any confession can be trusted. As Lt. Cmdr. Kuebler explained on Monday, Khadr “regularly lied to his interrogators to avoid being abused.”

No one is safe from rendition and torture

This was disturbing enough, but testimony by another interrogator on Monday, FBI Special Agent Robert Fuller, added a chilling new dimension to the ways in which dubious confessions have been interpreted in the “War on Terror,” providing a rare insight into the bleak world of “extraordinary rendition,” secret prisons and outsourced torture that Barack Obama must also tackle if he is to have any hope of fulfilling his ambition to restore America’s moral standing in the world.

According to Fuller, who interrogated Khadr in the US prison at Bagram airbase for two weeks in October 2002, when Khadr was shown a photograph of Maher Arar, a Canadian engineer of Syrian origin, who was seized at New York’s JFK airport on September 26, 2002, he identified him by name and said that he recognized him because he had seen him at an al-Qaeda “safe house” in Kabul, Afghanistan “on several occasions,” adding that he also “might have seen him” at an al-Qaeda training camp.

Fuller’s testimony was largely ignored outside Canada, but it sent shockwaves through the Canadian media, and for good reason. On October 9, 2002, the day after Khadr reportedly identified him, Arar was subjected to “extraordinary rendition” by the US authorities. Flown to Syria, he was tortured for ten months before being released, and after his return to Canada was awarded 10.5 million Canadian dollars in compensation. Despite this, the US authorities had never explained why they had sent Arar to Syria, and had refused to remove his name from a terrorist no-fly list.

Now, of course, it appeared that they had sent Arar to Syria because of what Omar Khadr had told an FBI interrogator, and that they refused to clear his name because they still harbored suspicions that he was connected to terrorism, even though Arar had only been seized initially because he had been placed on a watch list by the over-vigilant Royal Canadian Mounted Police, who had alerted the US authorities, and even though he had insisted all along that he had never been to Afghanistan.

Those who knew about Arar’s case were, of course, appalled. Lorne Waldman, Arar’s former lawyer, explained to the Toronto Star that before Arar’s compensation was paid, Stockwell Day, the Canadian public safety minister, “was apparently shown the entire Arar file” by the US government, and “later asserted there was no reason in his view that Arar should remain on a watch list.” Waldman added that if Day “was told he was shown the whole file, either we have a major problem if he wasn’t shown this, or he was shown it and he attached no credibility to it.”

Waldman was right, of course, but the truth only emerged during the cross-examination of Fuller, when it turned out that the FBI agent’s notes did not mention Khadr identifying Arar by name, and that they revealed that Khadr only “stated that he looked familiar.” Fuller added in his notes that “in time” Khadr “stated he felt he had seen” Arar in Afghanistan, but neglected to mention in his testimony that the period when Khadr “felt” he had seen Arar was in late September and early October 2001, when he was in Canada, under surveillance by the RCMP.

Lt. Cmdr. Kuebler described Fuller’s testimony as a “gift” from the government, and there is, I think, no doubting that he was right, but what is particularly chilling about the testimony of both “Interrogator 11” and Robert Fuller is not just how false confessions can so easily be dressed up as the truth, and how a prisoner saying that someone in a photo “looked familiar” can lead to that person’s rendition to horrendous torture, but how both of these responses are typical of the supposed evidence that is used to hold numerous other prisoners in Guantánamo, to this day, and that has also, presumably, been used as an excuse to fly other prisoners to torture prisons around the world, either run by the CIA or in third countries prepared to act as proxy torturers.

Secret prisons and Guantánamo lies

On this latter point, we still have disturbingly little evidence to go on, because so few prisoners have emerged from the secret prisons to tell their tales, although the number of innocent men who have resurfaced, to be freed without charge, suggests that the process has been both disturbingly widespread, and as generally lacking in evidence as the case of Maher Arar. They include, to name but a few, Khalid El-Masri, a German who was kidnapped in Macedonia and rendered to torture in the CIA’s “Salt Pit” prison in Afghanistan because he had the same name as a man who allegedly provided assistance to the 9/11 attackers, Laid Saidi, an Algerian seized in Africa, who spent 16 months in the “Salt Pit” and the “Dark Prison,” another secret CIA prison in Afghanistan, and Marwan Jabour, a Palestinian seized in Pakistan in May 2004, who spent over two years in another secret prison in Afghanistan (PDF).

As for Guantánamo, confessions that do not equate with other known evidence, and statements that other prisoners “looked familiar” — accompanied by accounts of their presence in places they had never been — are a cornerstone of the Bush administration’s approach to intelligence-gathering. I discovered numerous examples while researching my book The Guantánamo Files, and others have been exposed by diligent military officials, including Lt. Col. Stephen Abraham, a veteran of US intelligence who worked on Guantánamo’s tainted tribunals, and an unnamed Lieutenant Colonel in the US Army, who discovered that one particular prisoner, described by the CIA as a notorious liar, had made false allegations against 60 prisoners in total.

Another example surfaced just last week, during the habeas corpus review of Mohammed El-Gharani, a Chadian national and Saudi resident who was seized in a raid on a mosque in Karachi, Pakistan, when he was just 14 years old. Ordering his release “forthwith,” Judge Richard Leon lambasted the government for attempting to build a case that El-Gharani had been in Afghanistan — and had been part of an al-Qaeda cell in London when he was 11 years old — by relying on statements made by two other prisoners whose unreliability had been flagged by government officials.

As President Obama prepares to sign his executive order announcing that Guantánamo will be closed within a year, these are the kinds of stories we need to know, both to make sure that he sticks to his timetable, and, I believe, to ask him why, after seven years, he needs a whole year to dismantle a prison built on lies.

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.

As published on the Huffington Post, CounterPunch, Antiwar.com and ZNet.

See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 2007), A bad week at Guantánamo (Commissions revived, September 2007), The curse of the Military Commissions strikes the prosecutors (September 2007), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Guantánamo’s shambolic trials (ex-prosecutor turns, February 2008), Torture allegations dog Guantánamo trials (March 2008), African embassy bombing suspect charged (March 2008), The US military’s shameless propaganda over 9/11 trials (April 2008), Betrayals, backsliding and boycotts (May 2008), Fact Sheet: The 16 prisoners charged (May 2008), Four more charged, including Binyam Mohamed (June 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan’s trial approved, July 2008), A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008), Salim Hamdan’s sentence signals the end of Guantánamo (August 2008), High Court rules against UK and US in case of Binyam Mohamed (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), Meltdown at the Guantánamo Trials (five trials dropped, October 2008), The collapse of Omar Khadr’s Guantánamo trial (October 2008), Corruption at Guantánamo (legal adviser faces military investigations, October 2008), An empty trial at Guantánamo (Ali Hamza al-Bahlul, October 2008), Life sentence for al-Qaeda propagandist fails to justify Guantánamo trials (al-Bahlul, November 2008), Guilt by Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), 20 Reasons To Shut Down The Guantánamo Trials (profiles of all the prisoners charged, November 2008), How Guantánamo Can Be Closed: Advice for Barack Obama (November 2008), More Dubious Charges in the Guantánamo Trials (two Kuwaitis, November 2008), The End of Guantánamo (Salim Hamdan repatriated, November 2008), Torture, Preventive Detention and the Terror Trials at Guantánamo (December 2008), Is the 9/11 trial confession an al-Qaeda coup? (December 2008), The Dying Days of the Guantánamo Trials (January 2009), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Bush Era Ends with Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009).

And for a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Obama’s Confusion Over Guantánamo Terror Trials (June 2009).

The story begins with the shameful case of Maher Arar, a Syrian-born Canadian who was kidnapped by US agents as he changed planes in New York in 2002, and rendered to Syria, where he was tortured for a year on behalf of the Americans before being released.

Mr. Arar –- who was awarded millions of dollars in compensation by the Canadian government in January 2007, but has yet to receive even an apology from the US administration –- had been wrongly fingered by Canadian intelligence, and his case is one of many chilling examples of the damage caused by failed intelligence in the American’s program of “extraordinary rendition.”

In an attempt to prime diplomats about how to spot the signs of torture when they visit Canadians in foreign jails, the Canadian government’s Foreign Affairs Department instigated a “torture awareness workshop,” which also informed the diplomats of where they could expect to find what CTV in Canada described as “countries and places with greater risks of torture.”

The list, in a training manual issued by the Foreign Affairs Department, included traditional offenders –- Afghanistan, China, Egypt, Iran, Mexico, Saudi Arabia and Syria –- but also included some torturers that are not generally mentioned in polite Western company: Israel and the United States. Specific mention was made of Guantánamo Bay, where, to drive the point home, the manual noted specific “US interrogation techniques,” including “forced nudity, isolation, and sleep deprivation.”

Oops.

The manual was never supposed to have been publicly released, of course, but the Canadian government inadvertently released it to lawyers for Amnesty International as evidence in a court case relating to the alleged abuse of Afghan detainees, after they were handed over by Canadian soldiers to the local Afghan authorities. After realizing their mistake, government officials desperately tried to get the manual back, stating, as CTV put it bluntly, that they “wanted to black out sensitive parts that may anger allies.”

It’s too late for that, of course. While US ambassador David Wilkins declared, “We find it to be offensive for us to be on the same list with countries like Iran and China,” adding, “Quite frankly it’s absurd,” lawyers and human rights activists have seized upon the documents to insist, for the second time in only a few months, that the Canadian government is guilty of double standards in its refusal to act on behalf of Omar Khadr, the Canadian Guantánamo detainee who was just 15 years old when he was captured in Afghanistan in July 2002.

And they’re right to do so. The first set of double standards was highlighted in September, when, during a visit to Canada to publicize Mr. Khadr’s plight, his US military lawyer, Lt. Cmdr. William Kuebler, contrasted the Canadian government’s “leadership in international efforts to recognize child soldiers as victims in need of special protection and rehabilitation” with its “virtual silence” in the case of his client. Just two weeks ago, David Crane, the former US prosecutor for Sierra Leone’s war crimes trials, who is now a professor at Syracuse University, revived this argument, telling Michelle Shephard of the Toronto Star that he failed to understand how Canada and the United States “could be sympathetic to the plight of Africa’s child soldiers, who are forced to commit atrocious crimes,” but not to Khadr, whose circumstances were the same. “I’m just not sure why the Canadian government, which was tremendously important in my work in West Africa –- they were incredibly supportive –- is not making a bigger deal of this,” he said.

This latest revelation only adds to the government’s self-inflicted woes. As Amir Attaran, a law professor at the University of Ottawa, explained to CTV, the new developments cast doubt on the government’s assertion that Khadr is being treated fairly in US custody. “Canada has just admitted we believe torture is possible in Guantánamo Bay,” he told the broadcaster’s Canada AM show. “That clashes terribly with what Prime Minister Stephen Harper has said, that Mr. Khadr, who is in Guantánamo Bay and was a child at the time he was put there, is being given a (quote, unquote) appropriate judicial process. Torture is not an appropriate judicial process.” Attaran went on to suggest that the Canadian government’s refusal to demand Khadr’s release from Guantánamo was purely political. “Out of a desire to appear tough on the war on terror, Mr. Harper has put this set of considerations out the window, and that’s not appropriate,” he said, adding, “We have to obey the law.”

Lt. Cmdr. Kuebler also spoke to CTV, reinforcing Amir Attaran’s statement that the documents relating to the “torture awareness workshop” contradict Prime Minister Stephen Harper’s assurances that Khadr is receiving fair treatment. “Omar has been there for five and a half years,” he said, “and at some point in the course of [his] detention the Canadian government developed the suspicion he was being tortured and abused. And yet it has not acted to obtain his release from Guantánamo Bay and protect his rights, unlike every other Western country that has had its nationals detained in Guantánamo Bay.”

Kuebler added that the suspicions that his client has been tortured at Guantánamo undermined any claims that he could receive a fair trial in his Military Commission –- the novel system of show trials invented by Dick Cheney and his advisors in November 2001, whose rampant lawlessness is discussed at length here.

He explained that he and the rest of his legal team want Khadr to be sent back to Canada to face justice there, and pointed out the absurdity of the Canadian government’s claims that they were waiting for the US judicial process to play itself out. “Omar has certainly been abused, his rights have been violated under international law, and apparently the Canadian government has reason to believe that’s true, and yet, they’ve acted not at all to assist him,” he told CTV.

While the Canadian government attempts to repair its relations with the United States and Israel, the next phase of Omar Khadr’s trial by Military Commission is scheduled to take place early next month, and several motions have already been filed on his behalf. One argues that the Commissions are unconstitutional because they are designed only for non-Americans, and another –- relating specifically to Mr. Khadr –- argues that they have no jurisdiction over him because trying a detainee who was 15 years old at the time of his capture would violate the Optional Protocol to the Convention on the Involvement of Children in Armed Conflict, a United Nations measure ratified by the United States in 2002, which safeguards juveniles (those under 18 years old) from prosecution. As his lawyers have pointed out, “No international criminal tribunal established under the laws of war, from Nuremberg forward, has ever prosecuted former child soldiers as war criminals,” adding that, if Commission judge Col. Peter Brownback pursues Khadr’s case, he will be “the first in western history” to preside over a trial of alleged war crimes committed by a child.

Adding to the Canadian government’s embarrassment, at almost the same time that the contents of the Canadian government’s training manual were made public, it was revealed that 55 law professors and 22 members of Parliament, including Canada’s former attorney general, Irwin Cotler, had signed the defense lawyers’ motion, stating unequivocally, “It is a principle of customary international law that children are to be accorded special protections in all criminal proceedings, and in any prosecution for participation in warlike acts.”

In the pipeline, undoubtedly, are numerous references to the Canadian government’s latest gaffe, in documents to be filed by Omar Khadr’s lawyers, which would be laughable if the result of the government’s contradictions and cowardice were not so heartless.

You could ask Omar Khadr himself, if you could get anywhere near him.

For more information about Omar Khadr, the Military Commissions and “extraordinary rendition,” see my book 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 see here for my definitive Guantánamo prisoner list, published in March 2009.

As published on the Huffington Post, CounterPunch, Antiwar.com and AlterNet.