I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.
Last week, in the latest development in a long-running court case related to Guantánamo, the court of appeals in Washington, D.C. (the D.C. Circuit) upheld Ali Hamza al-Bahlul’s November 2008 conviction for conspiracy in his trial by military commission, but in a divided decision that means the case will almost certainly now make its way to the Supreme Court.
Al-Bahlul, a Yemeni, was seized in Afghanistan in December 2001, and taken to Guantánamo, where, in June 2004, he was charged in the first version of the military commissions that were ill-advisedly dragged out of the history books by the Bush administration in November 2001, primarily on the basis that he had made a promotional video for al-Qaeda.
Two years later, the commissions were scrapped after the Supreme Court ruled that they were illegal, but they were subsequently revived by Congress, and in February 2008 he was charged again, and convicted in November 2008, after a trial in which he refused to mount a defense, on “17 counts of conspiracy, eight counts of solicitation to commit murder and 10 counts of providing material support for terrorism,” as I described it at the time. Read the rest of this entry »
For some prisoners held in the “war on terror” prison at Guantánamo Bay, it seems there really is no way out. One example would seem to be Ali Hamza al-Bahlul, a 45-year old Yemeni prisoner and a propagandist for al-Qaeda, who made a promotional video glorifying the attack on the USS Cole in October 2000, in which 17 US soldiers died, and who received a life sentence for providing material support for terrorism, conspiring with al-Qaeda and soliciting murder after a one-sided military commission trial in the dying days of the Bush administration.
Al-Bahlul has been held in solitary confinement ever since — on what is known as “Convicts’ Corridor,” according to Carol Rosenberg of the Miami Herald, even though, since January 2013, he has had every part of his conviction overturned in the US courts — most recently in a ruling by the appeals court in Washington D.C. (the D.C. Circuit Court) on June 12.
In January 2013, a three-judge panel in the D.C. Circuit Court overturned the material support and solicitation convictions, on the basis that the charges of which he was convicted were not recognized as war crimes at the time he was accused of committing them; or, to put it another way, that they had been invented as war crimes by Congress. That ruling drew on a ground-breaking ruling by the D.C. Circuit Court three months earlier, overturning the material support conviction against another man, Salim Hamdan, a driver for Osama bin Laden who was freed in December 2008. The decision in al-Bahlul’s case was confirmed by a full panel of judges in July 2014, and the judges last month overturned the conspiracy conviction — on the basis that conspiracy is not a crime under the international law of war. Read the rest of this entry »
I wrote the following article for the “Close Guantánamo” website, which I established in January 2012 with US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.
Last week, lawyers for former Guantánamo prisoner David Hicks, an Australian who, in March 2007, was the first Guantánamo prisoner to accept a guilty plea in a military commission trial in order to get out of the prison, appealed his conviction — for the second time in the last ten months.
Hicks had accepted a plea of providing material support for terrorism in exchange for being returned to Australia and being freed after just nine months. However, in October 2012 the court of appeals in Washington D.C. (the D.C. Circuit Court) threw out the conviction of another prisoner who had been convicted of providing material support for terrorism in a military commission trial, paving the way for Hicks to challenge his conviction.
That man was Salim Hamdan, a Yemeni who had worked as a paid driver for Osama bin Laden, and who had been convicted in the summer of 2008. As the Circuit Court described it, “When Hamdan committed the conduct in question, the international law of war proscribed a variety of war crimes, including forms of terrorism. At that time, however, the international law of war did not proscribe material support for terrorism as a war crime.” Read the rest of this entry »
In the latest news from Guantánamo, the court of appeals in Washington D.C. ruled yesterday that hunger-striking prisoners can challenge their force-feeding in a federal court — and, more generally, ruled that judges have “the power to oversee complaints” by prisoners “about the conditions of their confinement,” as the New York Times described it, further explaining that the judges ruled that “courts may oversee conditions at the prison as part of a habeas corpus lawsuit,” and adding that the ruling “was a defeat for the Obama administration and may open the door to new lawsuits by the remaining 155 Guantánamo inmates.”
In summer, four prisoners, all cleared for release since at least January 2010 — Shaker Aamer, the last British resident in the prison, Ahmed Belbacha, an Algerian, Abu Wa’el Dhiab, a Syrian and Nabil Hadjarab, another Algerian, who was later released — asked federal court judges to stop the government from force-feeding them, but the judges ruled (see here and here) that an existing precedent relating to Guantánamo prevented them from intervening. The prisoners then appealed, and reports at the time of the hearing in the D.C. Circuit Court indicated that the judges appeared to be inclined to look favorably on the prisoners’ complaints.
As was explained in a press release by Reprieve, the London-based legal action charity whose lawyers represent the men involved in the appeal, along with Jon B. Eisenberg in California, the D.C. Circuit Court “held that the detainees should be allowed a ‘meaningful opportunity’ back in District Court to show that the Guantánamo force-feeding was illegal.” They also “invited the detainees to challenge other aspects of the protocol.” Read the rest of this entry »
Sometimes life takes us down unexpected routes, and yesterday, while looking for links for my last article, a transcript of a talk I gave in Los Angeles during my recent US tour calling for the closure of the prison at Guantánamo Bay on the 12th anniversary of its opening, I found myself visiting a page I first created in May 2010, entitled, “Guantánamo Habeas Results: The Definitive List.”
The page is a list of all the prisoners whose habeas corpus petitions were ruled on by judges in the District Court in Washington D.C. following the Supreme Court’s important ruling, in June 2008, in Boumediene v. Bush, granting the prisoners constitutionally guaranteed habeas corpus rights. At the time I created the list, there had been 47 rulings, and in 34 of those cases, after reviewing all the evidence, the judges concluded that the government had failed to demonstrate that they were connected in any meaningful manner with either al-Qaeda or the Taliban, an ordered their release.
This was humiliating for those who sought to defend Guantánamo, especially as the habeas hearings involved a low evidentiary hurdle — requiring the government to establish its case through a preponderance of the evidence rather than beyond any reasonable doubt. It was, moreover, a vindication for those like myself and some other journalists, as well as lawyers for the men, NGOs and others concerned by the existence of Guantánamo, like Lt. Col. Stephen Abraham, who had worked on the tribunals at Guantánamo, who had long maintained that the supposed evidence against the men was flimsy and untrustworthy, in large part because it was gathered using torture or other forms of coercion, or, in some cases at Guantánamo, because certain prisoners were bribed with better living conditions if they told lies about their fellow prisoners. Read the rest of this entry »
Last week, a panel of three appeals court judges in Washington D.C. (in the D.C. Circuit Court) heard an appeal from three Guantánamo prisoners — including the last British resident, Shaker Aamer — asking them to order the government to end the force-feeding of prisoners, and two of the three judges “asked sceptical questions of a government lawyer who argued that the courts have no jurisdiction” over conditions at Guantánamo, as Reuters described it.
At the height of the prison-wide hunger strike at Guantánamo this year, at least 106 of the remaining 164 prisoners were on a hunger strike, and 46 of those men were being force-fed. That total has now fallen to 15, but twice a day those 15 men are tied into restraint chairs, while liquid nutrient is pumped into their stomachs via a tube inserted through their nose, a painful and abusive process denounced by the World Medical Association and the United Nations.
In summer, two District Court judges turned down motions challenging the force-feeding of prisoners, ruling that they didn’t have jurisdiction in the case because of previous rulings involving Guantánamo and hunger strikes. Specifically, when Congress passed the Detainee Treatment Act of 2005, the legislation prevented prisoners from suing over their living conditions. Read the rest of this entry »
In preventing the release of prisoners from Guantánamo, all three branches of the US government are responsible. President Obama promised to close the prison within a year of taking office, but he lacked a concrete plan, and soon caved in to criticism, blocking a plan by White House counsel Greg Craig to bring some cleared prisoners who couldn’t be safely repatriated — the Uighurs, Muslims from China’s Xinjiang province — to live in the US, and imposing a ban on releasing all Yemenis after it was discovered that a failed plot to blow up a plane bound for the US on Christmas Day 2009 was hatched in Yemen.
Congress, in turn, imposed ban on bringing prisoners to the US mainland, and, in the last two versions of the National Defense Authorization Act, a ban on releasing prisoners to any country where even a single released prisoner has allegedly engaged in recidivism (returning to the battlefield), and a requirement that, if a prisoner were to be released, the Secretary of Defense would have to certify that they would not be able, in future, to engage in any terrorist activities — a requirement that appears to be impossible to fulfill.
Largely overlooked has been the responsibility of the judiciary — and specifically, the Court of Appeals in Washington D.C. (the D.C. Circuit Court), and the Supreme Court, but their role in keeping men at Guantánamo is also crucial.
Nine years ago, in June 2004, in Rasul v. Bush, the Supreme Court granted the prisoners habeas corpus rights, a momentous ruling that pierced the veil of secrecy that had allowed the Bush administration to establish a torture regime at Guantánamo, and also allowed the prisoners to be represented by lawyers, who were allowed to visit them. Read the rest of this entry »
The invented war crime is “providing material support to terrorism,” and on October 16, 2012, a panel of three judges in the D.C. Circuit Court (the Court of Appeals in Washington D.C.) threw out the conviction of Salim Hamdan, a driver for Osama bin Laden, who had received a five and a half year sentence for “providing material support to terrorism” at the end of his trial by military commission in August 2008 (although he was freed just five months later, as his sentence included time already served).
In its ruling, the court stated, “When Hamdan committed the conduct in question, the international law of war proscribed a variety of war crimes, including forms of terrorism. At that time, however, the international law of war did not proscribe material support for terrorism as a war crime.”
For anyone who has followed the history of the military commissions in any depth, the result was not completely unexpected. Revived by the Bush administration in November 2001, specifically for trying prisoners seized in the “war on terror,” the commissions were struck down by the Supreme Court in June 2006, but were then revived by Congress, when “providing material support to terrorism” and “conspiracy” were included as war crimes, even though there was no precedent for doing so. Read the rest of this entry »
Seven years ago, on June 28, 2004, the Supreme Court issued a historically important ruling in Rasul v. Bush, establishing that foreign nationals held at the Bush administration’s “War on Terror” prison at Guantánamo Bay, Cuba, had habeas corpus rights; in other words, the right, under the “Great Writ,” first established in England in 1215, to ask an impartial judge to rule on whether there were grounds for their detention.
A bulwark against arbitrary imprisonment, habeas corpus was essential for the prisoners at Guantánamo, who, for the previous two and a half years, had been held in what Lord Steyn, a British law lord, described as a “legal black hole” in a speech in November 2003, unable to seek any redress whatsoever if, as many of them claimed, they had been seized by mistake.
With breathtaking arrogance, the Bush administration had refused to screen those it captured through Article 5 competent tribunals. Also known as battlefield tribunals, these are part of the Geneva Conventions, designed to screen prisoners who, like those in the “War on terror,” were not part of a regular army. The US military had used them since Vietnam, and in the first Gulf War, for example, had held 1196 tribunals, and, in 886 cases (74 percent), found it had detained civilians instead of combatants, and released them (PDF, p.663). Read the rest of this entry »
Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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