UN Working Group on Arbitrary Detention Condemns US Treatment of Ammar Al-Baluchi at Guantánamo, Says All Prisoners Arbitrarily Detained

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I wrote the following article (as “U.N. Working Group on Arbitrary Detention Condemns U.S. Treatment of ‘High-Value Detainee’ Ammar Al-Baluchi at Guantánamo”) 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.

In a strongly-worded press release, the United Nations Working Group on Arbitrary Detention declared on Sunday evening their finding that “detention conditions at Guantánamo [and the] military commission procedures violate international law.”

The Working Group, which consists of “international legal experts mandated to investigate arbitrary deprivations of liberty,” issued its press release following the release last month of Opinion 89/2017, “a comprehensive condemnation of the United States’ continuing commission of torture and due process violations at Guantánamo Bay,” specifically focusing on the case of “high-value detainee” Ammar al Baluchi (aka Ali Abd al-Aziz Ali).

The press release explained that the Working Group’s Opinion “was issued in January 2018 following substantive briefings to the Working Group by the United States government and counsel for Mr. al Baluchi.” Alka Pradhan, civilian counsel for Mr. al Baluchi, declared, “This is a major public denunciation of the United States’ illegal prison and military commissions at Guantánamo Bay, and a specific call to change Mr. al Baluchi’s circumstances immediately.”

In the detailed, 20-page Opinion, the Working Group found that, nearly 15 years after Mr. al Baluchi’s initial capture, the United States government “has failed to establish a legal basis for Mr. al Baluchi’s detention at Guantánamo Bay.”

The Working Group first declared that the detention of Mr. al-Baluchi — and 25 other men — was arbitrary back in 2006, when he and others were still held in “black sites” by the CIA, but they make it clear that this Opinion refers to the nearly eleven and a half years he has spent in Guantánamo, since he and 13 other “high-value detainees” were flown there from CIA “black sites” in September 2006.

As was also noted in the Opinion, the Working Group and other UN mandate holders have repeatedly challenged the existence of Guantánamo. Most recently, in December (and also with reference to Ammar al-Baluchi), Nils Melzer, the UN Special Rapporteur on Torture, “appealed to the United States to end a pervasive policy of impunity for crimes of torture committed by US officials,” and stated that “he was particularly concerned about detainees who had faced prolonged detention in almost complete isolation.” He “highlighted the case of Ammar al-Baluchi, named 153 times in the Senate report, who is said to have suffered relentless torture for three-and-a-half years in CIA ‘black sites’ before being moved to Guantánamo Bay, where his torture and ill-treatment are reported to continue.”

The Working Group explained that, although they were not able to confirm al-Baluchi’s lawyers’ contention that the US was not at war with Al-Qaeda on September 11, 2001, they were not reassured that, “even if an armed conflict existed on 11 September 2001,” the US was not paying any attention whatsoever to the fact that “the Geneva Conventions require that enemy belligerents and civilians who are detained as threats to security be released at the end of the armed conflict or hostilities.” As they stated, “At the current point in time, whether the war on terror is considered an international or non-international armed conflict, any of the procedures for detention regimes under international humanitarian law as the lex specialis have ceased to apply, if they ever did, to Mr. al Baluchi. International humanitarian law was never conceived to apply to detention of the length of that of Mr. al Baluchi, who has now been detained at Guantánamo Bay for more than 11 years.”

The Working Group also stated that, from September 2006 to April 2008, when al-Baluchi was held without charge (until he was first charged in the military commissions under George W. Bush), and from January 2010 to May 2011 (from when the charges were dropped under President Obama until they were reinstated), his imprisonment was “a violation of [his] right under articles 9 (2) and 14 (3) (a) of the Covenant to be promptly informed of the charges against him, as well as a failure to invoke a legal basis to justify his detention.” The reference to “the Covenant” refers to the International Covenant on Civil and Political Rights, in force since 1976, which commits its signatories, including the US, to respect the civil and political rights of individuals, including their rights to due process and a fair trial.

The Working Group also found that the Combatant Status Review Tribunal for Mr. al-Baluchi, which took place in March 2007, and which “resulted in his categorization as an ‘enemy combatant’ who could be detained pursuant to the laws of war for his alleged association with Al-Qaida,” was inadequate, because the CSRTs “do not satisfy the right to habeas corpus or to a fair and independent trial under article 10 of the Universal Declaration of Human Rights and article 14 (1) of the Covenant, as they are military tribunals of a summary nature.”

As the Working Group also noted, al-Baluchi’s hearing lasted for just 1 hour and 20 minutes, and “the Tribunal failed to provide [him] with procedural protections, such as the exclusion of coerced statements and unreliable hearsay evidence, and the ability to cross-examine witnesses.” In addition, “The Government’s evidence was also considered by the Tribunal to be presumptively correct.”

For these reasons, and because Mr. al-Baluchi “was not afforded his right to be brought promptly before a judge or other judicial authority for review of his detention under article 9 (3) of the Covenant, or his right to take proceedings before a court to determine the lawfulness of his detention without delay under article 9 (4) of the Covenant,” the Working Group concluded that “no legal basis has been established for his detention.”

Noticeably, the findings above also reflect on every other prisoner at Guantánamo, almost all held without charges, or, if charged, held for long periods without being charged, and all subjected to the “summary nature” of the Combatant Status Review Tribunals, which were conducted between 2004 and 2005 (and followed by repeated administrative reviews under President Bush), and whose inadequacies were exposed by Lt. Col. Steven Abraham back in 2007.

Regarding Mr. al Baluchi’s due process rights, the Working Group was not impressed by the judge in his military commission trial ruling that he “has no right to consular access,” and the fact that he “has been denied communication with any consular officials since his detention began.” As they explained, “Mr. al Baluchi’s inability to communicate with consular authorities has potentially precluded effective solutions to his prolonged and indefinite detention, such as being able to challenge the lawfulness of his detention before a court and obtain a remedy without delay under article 9 (4) of the Covenant. It has also placed Mr. al Baluchi at risk of further human rights violations, including torture and other ill-treatment.”

The Working Group also found that his “portrayal in the movie Zero Dark Thirty, whose filmmakers were assisted by the Central Intelligence Agency, ‘is highly prejudicial to Mr. al Baluchi’s ability to obtain a fair trial,’ and ‘there is a serious and ongoing violation of Mr. al Baluchi’s right to be presumed innocent.’” The Working Group “further condemned the United States’ use of torture-derived statements against Mr. al Baluchi, noting that ‘these violations of the right to a fair trial are of such gravity … that it is no longer possible for Mr. al Baluchi to receive a fair trial.’”

The Working Group also noted that indefinite detention is “a form of cruel, inhuman and degrading treatment under international law that may amount to torture,” and also noted that, “under certain circumstances, widespread or systematic imprisonment or other severe deprivation of liberty in violation of the rules of international law may constitute crimes against humanity.”

The Working Group also expressed concerns that only Muslims are subjected to the US’s post-9/11 procedures, and noted that the US government failed to respond to the Working Group’s indication that it “has never prosecuted any person of any religious faith, other than Muslim men, before a Guantánamo Bay military commission.” It was also noted that “Mr. al Baluchi is suffering psychological and physical effects from the previous torture and his health is in severe decline. Despite his ongoing suffering, he has not been provided with torture rehabilitation or any other redress, as required” under international law. The Working Group found that “it is very unlikely that Mr. al Baluchi can effectively assist with, and participate in, his own defense.”

In conclusion, the Working Group concluded that “Mr. al Baluchi has not ‘been afforded equality of arms’ in terms of access to evidence under the same conditions as the prosecution,” and “specifically highlighted the fact that a great deal of ‘potentially exculpatory’ information from the CIA black sites has still not been provided to Mr. al Baluchi,” finding that “[i]t is clear from that information that the previous torture by the Agency, and the punitive conditions in which Mr. al Baluchi is currently being held, continues to have an impact upon the fairness of the current military commission proceedings against him.”

The Working Group also specifically made clear that it “wishes to clarify that, while it has specifically addressed Mr. al Baluchi’s case, the conclusions reached by the Working Group in this opinion also apply to other detainees in similar situations at Guantánamo Bay,” and explained that it “remains deeply concerned regarding the ongoing operation of the detention facility at Guantánamo Bay, the closure of which should remain a priority.”

In the meantime, the Working Group urged the US government “to cooperate with United Nations human rights mechanisms and allow them full access to the facility,” and stated that they “would welcome an invitation from the Government to undertake a follow-up visit to the United States, with specific authorization to visit the entire detention facility at Guantánamo Bay Naval Base, including camp 7, where Mr. al Baluchi is detained.” As they added, “According to the terms of reference for country visits by the Working Group, such a visit would need to be conducted under conditions which allow its members to have unrestricted access to the facility, and to hold private and confidential interviews with any detainee.”

The Working Group also “requested that the United States remedy Mr. al Baluchi’s situation immediately, and further requested both counsel for Mr. al Baluchi and the United States government to provide an update on Mr. al Baluchi’s case within six months.”

I look forward to hearing the US government’s response, and hope that no efforts are made to evade this very necessary spotlight on its unacceptable ongoing behavior at Guantánamo.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose music is available via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and see the latest photo campaign here) and the successful We Stand With Shaker campaign of 2014-15, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (click on the following for Amazon in the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US), and for his photo project ‘The State of London’ he publishes a photo a day from six years of bike rides around the 120 postcodes of the capital.

In 2017, Andy became very involved in housing issues. He is the narrator of a new documentary film, ‘Concrete Soldiers UK’, about the destruction of council estates, and the inspiring resistance of residents, he wrote a song ‘Grenfell’, in the aftermath of the entirely preventable fire in June that killed over 70 people, and he also set up ‘No Social Cleansing in Lewisham’ as a focal point for resistance to estate destruction and the loss of community space in his home borough in south east London.

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