The past month has been extremely busy in the courts, particularly the Guantánamo military commission, for prisoners. Much of this news, as dramatic as it is, has not been in the mainstream media. Below is a summary of the main developments as the war court has gone into meltdown.
NEWS:
Guantánamo Bay
On 10 October, the Supreme Court in the US brought an end to the long-running
appeal case of Ali Hamza Al-Bahlul, a Yemeni prisoner who is the only prisoner serving
a life sentence at Guantánamo as an alleged secretary and propagandist for Osama
Bin Laden. The case has been heard three times and led to the quashing of
former Australian prisoner David Hicks’ conviction when the charge of material
support for terrorism was thrown out. Acquitted once on all charges, and once
on this charge and the charge of soliciting murder, his charge for conspiracy,
around which the controversy in the case - as to whether it is a war crime -
revolved, remains. The decision leaves this question unsolved but allows Omar
Khadr’s appeal – he too was convicted of conspiracy – to move ahead. US law
professor Stephen Vladeck called the decision a “big win” for the US
government. For years, since the 2009 conviction was
appealed, the case has threatened to bring down the little legitimacy the Guantánamo
military commission system had.
On 16 October, the Supreme Court then declined to hear a pre-trial
challenge brought by Abd Al-Nashiri’s defence team to have a review of the his ordered, particularly to consider when the “war on terror” started as the offences
he is accused of are prior to 2001. His lawyers argued that the fact that he had
suffered severe torture should entitle him to a review and had it been
established that his offences predate the “war on terror”, they could then not
be tried at Guantánamo but before a federal court. The court has instead
decided that the trial may go ahead and these issues can be resolved
afterwards. Rather than slowing the trial down further, the court has decided
that it should go ahead and then regardless of the outcome be appealed, at
which stage it is likely to be quashed.The trial itself is largely just theatre. Lawyer Michel Paradis, who brought the
case, stated afterwards: “The military commissions’ only reason for
continuing to exist is to conceal this country’s use of torture.”
Just days before, on 13 October, Al-Nashiri’s defence quit in
highly-classified circumstances, stating that “doing
so was necessary because it was no longer ethical for us to proceed”. Chief
Defense Counsel, Brig. Gen. John Baker agreed to disband the team. The issue at
stake seems to relate to ongoing questions of the US government spying on
confidential client-attorney conversations. The press release indicates that
the defence became aware of new methods of intrusion – the use of microphones
to listen in had previously been uncovered – “that make it ethically impossible
for them to represent their client”.
This means that Al-Nashiri has lost his death penalty lawyer
Richard Kammen and no longer has a “learned counsel” – Kammen – which is
necessary for his trial to proceed. In addition, the confidential nature of the
decision means that Al-Nashiri cannot be informed of the reasons either. The
legal ethical issues mean that the lawyers cannot represent him until they are
resolved and he is now only left with his military defence lawyer, who cannot
defend him alone.
Following the unprecedented and shock removal of Al-Nashiri’s
defence team, the judge Air Force Col. Vance Spath ordered them to appear at
the next scheduled hearing on 30 October, stating while Baker had dismissed them, he had not. When the only plane carrying staff and observers to the
war court left the US mainland the weekend before, the three lawyers were
absent and have yet to appear at Guantánamo. Richard Kammen declared the order to
return to Guantánamo “illegal”.
When only military lawyer Navy Lt. Alaric Piette appeared before
the court on Monday 30 October, he agreed to continue to represent Al-Nashiri but said he
could not do so without a learned counsel. The prosecution filed a motion to
have the three absent lawyers held in contempt of court, which could land them
30 days in prison and a $1000 fine.
The prosecution ordered that Baker be questioned about his decision
to dismiss them but on 31 October he refused to testify or take back his order.
Following a contempt of court hearing for the defence lawyers
scheduled for 1 November, Al-Nashiri’s defence lawyer asked a federal judge to
order a halt to this week’s pre-trial hearing as he does not have a defence
team or a learned counsel. His lawyer, “Michael Paradis, said the military
judge is violating Al-Nashiri's rights by pressing on with the pretrial process
since the defendant faces the possibility of the death penalty.”
During the contempt hearing on 1 November, Baker was charged with
contempt and sentenced to serve 21 days in his trailer at Guantánamo and pay a
$1000 fine. The court has been adjourned until Friday. In a first, a US
military lawyer has been sentenced by the Guantánamo military commission for
defending the rule of law and due process in the act of defending his client.
With the severity of the current situation, Brig. Gen. Mark Martins
has also decided as of 30 October to stop providing briefings for journalists
and press conferences and may take further measures to prevent lawyers from
reporting what is going on in the court. Ironically, as the Guantánamo war
court goes into meltdown in a show worthy of a Hollywood war film, only one
reporter has attended most of these hearings and has been alone in reporting
them, alongside tweets from lawyers in the courtroom. Please visit www.miamiherald.com for the latest
updates from award-winning journalist Carol Rosenberg. The issue has otherwise
been completely ignored by the media, reflecting a general lack of interest or
concern in what happens at Guantánamo, or the severity of the case, given the
large number of people who died in the 2000 attack and the fact that the
defendant faces the death penalty.
Confounding the war court situation, on 18 October, prison guards
seized court-approved laptop computers and hard drives given to the five men
accused of involvement in the September 2001 attacks to help prepare their
death penalty case. The judge ordered staff not to look at materials on the
computers shared by the defendants and their lawyers. Ahead of their pre-trial
hearing resuming on the 18th, on Monday 16th October
their lawyers were denied access to where they usually meet for confidential
reasons until the judge again intervened.
The chief war crimes prosecutor Army Brig. Gen. Mark Martins, who
has served for the past 6 years, has also had his retirement set back by the
military from 1 November this year to 1 November 2019. He was initially
supposed to retire in 2014. He is the chief overseer of war court cases and a
case prosecutor in the two death-penalty cases involving 6 defendants.
On 13 October, Saudi prisoner Ahmed Al-Darbi, who pleaded guilty to
war crimes in a plea bargain in 2014, was sentenced by the military court to 13
years in prison for his “role in a 2002 attack by Al Qaeda on a French oil
tanker off the Yemeni coast.” Mr Al-Darbi’s plea bargain was secured in return
for him serving his sentence in his native Saudi Arabia and agreeing to testify
against two other prisoners facing trial. He has provided video evidence for
those cases. His confession was secured through the use of torture, including
rape, when he was a prisoner in Afghanistan. In addition, he was already in US military
detention when the attack took place and had provided intelligence to the US
military about potential attacks before it happened.
His sentencing has raised another key issue: will the Trump administration
honour the agreement made by Obama to allow Al-Darbi, who has already served
more than 15 years, which will not be taken into account, to return to Saudi
Arabia to serve his sentence there?
The New York Times' claim that his “sentencing completed a
rare successful case before the military commission system” is a shameful endorsement
of torture and other war crimes committed against Al-Darbi.
A mobile MRI unit arrived at Guantánamo Bay on a 4-month temporary
loan two years after one had been ordered by a military judge for prisoner Abd
Al-Nashiri. A brain scan is necessary for his death-penalty trial to go ahead.
His lawyers have argued that if he has suffered brain damage and this can be
demonstrated, his case should not be tried as a death-penalty case. The
equipment has been hired at a cost of $370,000. How successful the treatment
will be and what impact it may have on his case remain to be seen,
particularly as part of the torture he suffered while a CIA prisoner in
2002-2006, for which he has successfully sued Poland already, involved been
buried alive, an experience that may make one or several scans a difficult
experience to undergo. His lawyers had previously asked for him to be
transferred to the US mainland for treatment but this was ruled out by the
judge.
Prosecutors in the case of five other men also potentially facing
the death penalty for their alleged involved in attacks in New York City in
2001 have invited their defence lawyers to apply for brain and other body scans
of their clients as a possible mitigating factor in their cases too before the
unit leaves Guantánamo in February 2018.
The US military has abandoned its long-criticised painful policy of
force feeding hunger striking prisoners and is now no longer force feeding
them, which could lead to their death. Reprieve claims that the policy for two
of its clients, on hunger strike since 2013, is to leave them until they suffer
organ failure and then restart force feeding in an attempt to deter them from
continuing their protest action against their continued detention without
charge.
A case brought by former prisoners Mourad Benchellali and Nizar
Sassi, released in 2005, against senior US officials running Guantánamo Bay at
the time, in the French courts has been dismissed by a judge. They brought a
complaint against the torture and arbitrary detention they suffered. The two men
hoped to have General Geoffrey Miller, the commander at the time, summoned but
he failed to appear. Their lawyer has said that they will appeal this decision.
In an appeal hearing against his conviction last year
for alleged involvement in an armed robbery, former Belgian prisoner Moussa
Zemmouri heard the public prosecutor ask for his sentence to be increased to
five years and partially suspended. Zemmouri was initially given a 40-month suspended
sentences for conspiracy but denied the claims from the outset and said he
would appeal. In January this year, Zemmouri brought a claim before the UN Committee
Against Torture against the Belgian government for its involvement in his
ordeal and knowledge of the torture he suffered. That claim is ongoing.
Background to his case: https://onesmallwindow.wordpress.com/2016/07/22/former-guantanamo-prisoners-convicted-in-belgium/
On 20 October, a district court in Kazan, Russia, charged former
Guantánamo prisoner Airat Vakhitov with involvement in a 2011 video, which
allegedly resurfaced on social media in 2016, in which he is reported to praise
Al Qaeda and jihad. An international arrest warrant, a common ruse used by the
Russian authorities to net dissidents abroad, was issued the day before. The
move paves the way for the long-sought extradition of Vakhitov back to the
Russian Federation. Vakhitov, currently in prison without trial for over one year in Turkey,
has used his lengthy absence from the country to work as a journalist and
expose the Russian authorities’ abuse of the human rights of its Muslim
minorities.
Background to his case: https://onesmallwindow.wordpress.com/2017/03/18/whos-afraid-of-airat-vakhitov/
The stipend to cover living costs paid to 6 former prisoners living
as refugees in Uruguay is due to come to an end in January 2018. Future
provisions for the 6 men who have not been able to find sustainable jobs or
incomes in their new country, since 2014, have not been disclosed. In addition,
Jihad Diyab, who has long sought to leave the country, has asked to be allowed
to move to an area called Rivera which has an existing Muslim community where
he plans to open a shop and is an area that is cheaper to live in than the
capital Montevideo. The request has neither been agreed or turned down yet.
Extraordinary rendition
An unnamed US citizen who was allegedly fighting for ISIS and
turned himself over to the US military in Iraq is currently subject to an ACLU
court battle to represent him. The case of the man, who allegedly surrendered
himself and admitted he had fought for ISIS, has raised a lot of important
questions about the treatment of prisoners and whether they will end up at
Guantánamo Bay and what happens when they are a US citizen, such as this man. The
man was allegedly visited by the Red Cross in early October but has otherwise
remained detained without charge and incommunicado and his identity has not
been released. In a statement, the ACLU said, “The U.S. government cannot
imprison American citizens without charge or access to a judge. It also cannot
keep secret the most basic facts about their detention, including who they are,
where they are being held, and on what authority they are being detained. The
Trump administration should not resurrect the failed and unlawful policy of
‘enemy combatant’ detentions.” The longer the Trump administration takes to
decide on the future of the prisoner the more complications arise for it.
LGC Activities:
The October Shut Guantánamo! monthly demonstration was on 5 October.
Our next monthly demonstration is on Thursday 2 November outside the US
Embassy, Grosvenor Square, W1A, from 12-1pm and opposite Marble Arch, outside
Speaker’s Corner, Hyde Park from 1.15-2.15pm: https://www.facebook.com/events/1458945527487035/
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