In February 2009, the U.S. government transferred British resident Binyam Mohamed from the U.S. naval base at Guantánamo Bay home to the United Kingdom. A victim of extraordinary rendition, Mohamed had been imprisoned for seven years—held in Pakistan, Morocco and Afghanistan before his transfer to Guantánamo. After his release, Mohamed took legal action against the British government. He asserted that he had been subjected to cruel, inhuman and degrading treatment during his detention.
Other British residents held in Guantánamo, including Bisher al-Rawi, have likewise challenged their prolonged and abusive detention and interrogations. Their allegations implicated British intelligence in their interrogations and abuse. Mohamed, for instance, asserted that MI5 provided questions to foreign interrogators to facilitate his interrogations. He and other former detainees sought information from the British government regarding British complicity in their alleged torture.
At every turn, British intelligence challenged the efforts of former detainees, and the public, to shine the light on the abuse and British complicity in it. The government even took the extraordinary step of trying to litigate under “closed material procedures” the civil cases challenging the British government for its role in their abuse. A closed material procedure prevents the public and even the parties and their attorneys from having access to evidence, instead providing sensitive “closed” bundles of evidence only to “special advocates,” and to the court where appropriate. The closed material procedure does not take into account the public interest in disclosure, and information is known to the government lawyers, but not to the plaintiff or the plaintiff's lawyers.
The British Parliament has statutorily authorized the closed material procedure in only select categories of cases, and not in most civil cases. British courts have curtailed efforts by British state intelligence agencies to keep evidence of abuse secret. In July 2011, the UK Supreme Court rejected the use of the closed material procedure for civil litigation brought by the former detainees challenging their abuse. The Supreme Court unanimously ruled that it could not depart from the fundamental rules of a common law trial, including open justice—the public conduct of trials and release of judgments—as well as the right of a litigant to confront witnesses and know the evidence held by the government pertinent to his claims.
Rather than litigate the underlying issue of its complicity in the abuse of the British former Guantánamo detainees, the British government settled these civil cases. Yet the story is far from over. In October 2011, the Secretary of State for Justice presented to Parliament a Justice and Security Green Paper proposing a significant expansion of the use of the closed material procedure to “whenever necessary in civil proceedings,” as well as of special advocates, and limiting the categories of cases where a party is entitled to even a summary of the main intelligence documents. The British Parliament is currently considering these proposed modifications to limit access to intelligence information in civil proceedings. These are the wrong messages to draw from the Guantánamo civil cases.
Parliament should reject the Secretary of State’s proposals. Expanding the use of closed material procedures would shift the pendulum too far in the direction of secrecy, for alleged victims of abuse and for the public. In the Supreme Court opinion, Lord Dyson, writing for a majority of the Court’s judges, highlighted the 2010 report by the UK Parliament Joint Committee on Human Rights reviewing the first five years of the operation of the Special Advocates process. In its report, the Committee referenced the notorious Star Chamber—the seventeenth century English court with sessions held in secret and without appeal, and now symbolic of the dangers of a wayward, secretive and illegitimate judicial system unaccountable to the public or the rule of law.
The Parliamentary Joint Committee concluded that the use of special advocates “is a process which is not just offensive to the basic principles of adversarial justice in which lawyers are steeped, but it is very much against the basic notions of fair play as the lay public would understand them.” Other limitations on open judicial processes undermine the central role of open judicial review in democratic accountability. This remains true even and especially when national security is involved.
Where should a democratic society draw the line between what may legitimately be kept secret, and what should be open to litigants and the public? Freedom of information advocates, including the Open Society Justice Initiative and other partners, have drawn up the new Draft Principles on National Security and the Right to Information that could help legislative and regulatory drafters set the balance in a transparent and appropriate manner. These principles provide that certain categories of information are subject to presumptive disclosure, including information concerning treatment and interrogation of detainees, violations of human rights and international humanitarian law, arms sales, and corruption. Further, national security concerns cannot justify undermining the fundamental right of the public to have access to judicial processes, or the rights of victims of torture and other human rights abuses to seek a remedy.
A person credibly asserting that the government committed abuse should be entitled to challenge the government in court, and have access to information material to the case. Importantly the public, and not solely the parties, should have the right to contest restrictions to access, with meaningful and transparent judicial oversight.
In its Green Paper, the Secretary of State complains that the settlement of civil cases with former prisoners undermines the reputation of the intelligence services and leaves important questions unanswered. Yet the solution is not greater secrecy but more light. Litigation has been central to achieving some measure of accountability for national security overreaching, and to public disclosure of information concerning government abuses of power. It is litigation which has begun to uncover the role of the British government in the treatment of detainees at Guantánamo and in a secret web of prisons around the world—and to provide some measure of relief.
Allowing litigation to proceed only under a cloak of secrecy does a disservice to the litigants, but also to the public and the rule of law.
Source: Open Society Foundation
Showing posts with label Guantanamo. Show all posts
Showing posts with label Guantanamo. Show all posts
Friday, March 2, 2012
Wednesday, August 5, 2009
We’re discovering the worst of Bush in Barack Obama
Hearings are under way in the United States Senate to assess what to do with the 240 detainees still behind bars at Guantanamo Bay, and what will become of the military tribunals and detention without trial that the Bush administration and a compliant Congress put into place. The US Congress is also debating what will happen to the detention camp itself, which was established in 2002 to house men who were allegedly “the worst of the worst,” in a setting deliberately framed by Bush attorneys as “legal outer space.”
According to Wells Dixon, a lawyer at the Center for Constitutional Rights who represents some of the detainees, the Obama administration cannot risk calling the torture practices crimes, so it calls them “classified sources and methods” that cannot be revealed in court. “I can’t even tell you about the way my clients were tortured or I will be prosecuted,” he says. In fact, even the explanation of why this material is classified cannot be reproduced, because it is privileged. Nor has the access of lawyers to their Guantanamo clients improved under Obama. “We are subject in all detainee cases to a protective order,” Dixon says. “Under this order, everything the detainee says is classified,” unless the Defense Department’s “Privilege Team” decides otherwise. Dixon then told me a revealing story about one of his clients, Majid Khan, a so-called “high-value detainee” who was held for three years in CIA “black sites.” Khan was tortured, Dixon said, though “the government would say that what happened to him is an ‘intelligence source or method.’”
Because Dixon has a security clearance, he cannot discuss those classified “sources and methods.” On the other hand, Dixon continued, “When the government does something to [Khan] that they say is classified, they have disclosed to him classified information. But since he doesn’t have a security clearance, there is nothing that prevents him, unlike me, from saying to the outside world, ‘This is what they did to me.’ Nothing prevents that – except for the fact that he is physically in custody.”’ The “logical conclusion,” according to Dixon, is that Khan “must be detained for the rest of his life – regardless of whether he is ever charged with a crime – because if he was ever released, nothing would prevent him from disclosing this information.
Majid Khan – and there are many more like him – is a classic product of the Bush administration’s disregard for the fundamental principles of the rule of law. Unfortunately, Obama’s administration, for all its lofty rhetoric, appears too willing to perpetuate it.
Source: The Daily Star
According to Wells Dixon, a lawyer at the Center for Constitutional Rights who represents some of the detainees, the Obama administration cannot risk calling the torture practices crimes, so it calls them “classified sources and methods” that cannot be revealed in court. “I can’t even tell you about the way my clients were tortured or I will be prosecuted,” he says. In fact, even the explanation of why this material is classified cannot be reproduced, because it is privileged. Nor has the access of lawyers to their Guantanamo clients improved under Obama. “We are subject in all detainee cases to a protective order,” Dixon says. “Under this order, everything the detainee says is classified,” unless the Defense Department’s “Privilege Team” decides otherwise. Dixon then told me a revealing story about one of his clients, Majid Khan, a so-called “high-value detainee” who was held for three years in CIA “black sites.” Khan was tortured, Dixon said, though “the government would say that what happened to him is an ‘intelligence source or method.’”
Because Dixon has a security clearance, he cannot discuss those classified “sources and methods.” On the other hand, Dixon continued, “When the government does something to [Khan] that they say is classified, they have disclosed to him classified information. But since he doesn’t have a security clearance, there is nothing that prevents him, unlike me, from saying to the outside world, ‘This is what they did to me.’ Nothing prevents that – except for the fact that he is physically in custody.”’ The “logical conclusion,” according to Dixon, is that Khan “must be detained for the rest of his life – regardless of whether he is ever charged with a crime – because if he was ever released, nothing would prevent him from disclosing this information.
Majid Khan – and there are many more like him – is a classic product of the Bush administration’s disregard for the fundamental principles of the rule of law. Unfortunately, Obama’s administration, for all its lofty rhetoric, appears too willing to perpetuate it.
Source: The Daily Star
Friday, May 22, 2009
Obama Lauds Rights but Advances Disturbing Proposal for Guantanamo Detainees
US President Barack Obama delivered an eloquent defense of the national security reasons for respecting human rights in fighting terrorism, but his proposal to continue detaining terrorism suspects without trial ran counter to the principles he endorsed, Human Rights Watch said today. Obama also undercut his principles by insisting that military commissions could be a fair and credible means of administering justice.
Obama reiterated his decision to close the prison at Guantanamo, rightly emphasizing that US national security is strengthened when US actions are consistent with the country's most fundamental values. Facing growing congressional pressure to back down from the closure plan, Obama stood firm in his promise to "clean up the mess at Guantanamo" by finding alternative solutions for the detainees held there. However, his proposal to create a legal framework for prolonged detention without trial undermines the rule of law.
Obama also further discussed his decision to block the release of photos depicting the abuse of detainees in US custody in Iraq and Afghanistan, a decision that Human Rights Watch opposed. Obama claimed that the perpetrators of the abuses in those photos had "been investigated and held accountable," but those investigations focused solely on low-level personnel and ignored the senior officials who formulated abusive policies. While his concern about protecting US military personnel in Iraq and Afghanistan is legitimate, Obama should be aware that the real danger comes not from the further proof that abuse happened but from the widespread sense that the officials responsible for planning and authorizing abuses have not been held accountable.
Another important element of Obama's speech was his promise to launch a review of US classification policies and use of the "state secrets" privilege.
Source: Mail & Guardian
Obama reiterated his decision to close the prison at Guantanamo, rightly emphasizing that US national security is strengthened when US actions are consistent with the country's most fundamental values. Facing growing congressional pressure to back down from the closure plan, Obama stood firm in his promise to "clean up the mess at Guantanamo" by finding alternative solutions for the detainees held there. However, his proposal to create a legal framework for prolonged detention without trial undermines the rule of law.
Obama also further discussed his decision to block the release of photos depicting the abuse of detainees in US custody in Iraq and Afghanistan, a decision that Human Rights Watch opposed. Obama claimed that the perpetrators of the abuses in those photos had "been investigated and held accountable," but those investigations focused solely on low-level personnel and ignored the senior officials who formulated abusive policies. While his concern about protecting US military personnel in Iraq and Afghanistan is legitimate, Obama should be aware that the real danger comes not from the further proof that abuse happened but from the widespread sense that the officials responsible for planning and authorizing abuses have not been held accountable.
Another important element of Obama's speech was his promise to launch a review of US classification policies and use of the "state secrets" privilege.
Source: Mail & Guardian
Wednesday, May 20, 2009
Guantanamo detainee move blocked
The US Senate has overwhelmingly rejected plans to transfer detainees out of Guantanamo Bay, and refused funding to close down the prison camp.
Senators voted by 90-6 to block the transfer of 240 inmates, also stalling a request for $80m (£51m).
Correspondents say it is a rebuke to President Barack Obama's plans to close down the camp by January 2010.
Source: BBC
Senators voted by 90-6 to block the transfer of 240 inmates, also stalling a request for $80m (£51m).
Correspondents say it is a rebuke to President Barack Obama's plans to close down the camp by January 2010.
Source: BBC
Friday, January 23, 2009
Ex-Gitmo Detainee Joins Al-Qaida in Yemen
A Saudi man released from Guantanamo after spending nearly six years inside the U.S. prison camp is now the No. 2 of Yemen's al-Qaeda branch, according to a purported Internet statement from the terror network. The announcement, made this week on a Web site commonly used by militants, came as President Barack Obama ordered the detention facility closed within a year. Many of the remaining detainees are from Yemen, which has long posed a vexing terrorism problem for the U.S.
The terror group's Yemen branch — known as "al-Qaeda in the Arabian Peninsula" — said the man, identified as Said Ali al-Shihri, returned to his home in Saudi Arabia after his release from Guantanamo about a year ago and from there went to Yemen, which is Osama bin Laden's ancestral home. The Internet statement, which could not immediately be verified, said al-Shihri was the group's second-in-command in Yemen, and his prisoner number at Guantanamo was 372. "He managed to leave the land of the two shrines (Saudi Arabia) and join his brothers in al-Qaida," the statement said.
Documents released by the U.S. Defense Department show that al-Shihri was released from the facility at Guantanamo Bay, Cuba in November 2007 and transferred to his homeland. The documents confirmed his prisoner number was 372. Saudi Arabian authorities wouldn't immediately comment on the statement. A Yemeni counterterrorism official would only say that Saudi Arabia had asked Yemen to turn over a number of wanted Saudi suspects who fled the kingdom last year for Yemen, and a man with the same name was among those wanted. The official spoke on condition of anonymity because he wasn't authorized to speak to the press and would not provide more details.
Yemen is a U.S. ally in the fight against terror, but it also has been the site of numerous high-profile, al-Qaida-linked attacks including the 2000 bombing of the USS Cole in the Gulf of Aden, which killed 17 American sailors. Yemen's government struggles to maintain order. Many areas of the California-size country are beyond government control and Islamic extremism is strong. Nearly 100 Yemeni detainees remain at Guantanamo, making up the biggest group of prisoners.
Al-Shihri's case highlights the complexity of Obama's decision to shut down the detention center within a year despite the absence of rehabilitation programs for ex-prisoners in some countries, including Yemen. The Pentagon also has said more former ex-detainees appear to be returning to the fight against the U.S. after their release. Rep. Jane Harman, D-California, who heads the House Homeland Security subcommittee on intelligence, said the reports about al-Shihri should not slow the Obama administration's determination to quickly close the prison. "What it tells me is that President Obama has to proceed extremely carefully. But there is really no justification and there was no justification for disappearing people in a place that was located offshore of America so it was outside the reach of U.S. law," she told CBS's "The Early Show."
But Rep. Pete Hoekstra, of Michigan, the top Republican on the House Intelligence Committee, criticized the executive order Obama signed Thursday to close the facility as "very short on specifics." Interviewed on the same program, he said there are indications that as many as 10 percent of the men released from Guantanamo are "back on the battlefield. They are attacking American troops."
The militant Web statement said al-Shihri's identity was revealed during a recent interview with a Yemeni journalist. That journalist, Abdelela Shayie, told The Associated Press in a telephone interview on Friday that 35-year-old Saudi man had joined the kingdom's rehabilitation program after his release and got married before leaving for Yemen. Shayie said al-Shihri told him that several other former Guantanamo detainees had also come to Yemen to join al-Qaida.
Al-Qaida in the Arabian Peninsula is an umbrella group of various cells. Its current leader is Yemen's most wanted fugitive Naser Abdel Karim al-Wahishi, who was among 23 al-Qaida figures who escaped from a Yemeni prison in 2006.
Since the prison break, al-Qaida managed to regroup. It set up training camps, has attracted hundreds of young men and launched dozens of bloody attacks against Westerners, government institutions and oil facilities. Most recently, gunmen and two vehicles packed with explosives attacked the U.S. Embassy in Yemen in September, killing 17 people, including six militants. Al-Qaida claimed responsibility for the attack. According to the Defense Department, al-Shihri was stopped at a Pakistani border crossing in December 2001 with injuries from an airstrike and recuperated at a hospital. Within days of his release, he became one of the first detainees sent to Guantanamo. Al-Shihri allegedly traveled to Afghanistan after the Sept. 11 attacks, provided money to other fighters and trained in urban warfare at a camp north of Kabul, according to a summary of the evidence against him from U.S. military review panels at Guantanamo. He also was accused of meeting extremists in Iran and briefing them on how to enter Afghanistan, according to the documents.
Al-Shihri, however, said he traveled to Iran to buy carpets. He said he felt bin Laden had no business representing Islam, denied any links to terrorism and expressed interest in rejoining his family.
Source: abc
The terror group's Yemen branch — known as "al-Qaeda in the Arabian Peninsula" — said the man, identified as Said Ali al-Shihri, returned to his home in Saudi Arabia after his release from Guantanamo about a year ago and from there went to Yemen, which is Osama bin Laden's ancestral home. The Internet statement, which could not immediately be verified, said al-Shihri was the group's second-in-command in Yemen, and his prisoner number at Guantanamo was 372. "He managed to leave the land of the two shrines (Saudi Arabia) and join his brothers in al-Qaida," the statement said.
Documents released by the U.S. Defense Department show that al-Shihri was released from the facility at Guantanamo Bay, Cuba in November 2007 and transferred to his homeland. The documents confirmed his prisoner number was 372. Saudi Arabian authorities wouldn't immediately comment on the statement. A Yemeni counterterrorism official would only say that Saudi Arabia had asked Yemen to turn over a number of wanted Saudi suspects who fled the kingdom last year for Yemen, and a man with the same name was among those wanted. The official spoke on condition of anonymity because he wasn't authorized to speak to the press and would not provide more details.
Yemen is a U.S. ally in the fight against terror, but it also has been the site of numerous high-profile, al-Qaida-linked attacks including the 2000 bombing of the USS Cole in the Gulf of Aden, which killed 17 American sailors. Yemen's government struggles to maintain order. Many areas of the California-size country are beyond government control and Islamic extremism is strong. Nearly 100 Yemeni detainees remain at Guantanamo, making up the biggest group of prisoners.
Al-Shihri's case highlights the complexity of Obama's decision to shut down the detention center within a year despite the absence of rehabilitation programs for ex-prisoners in some countries, including Yemen. The Pentagon also has said more former ex-detainees appear to be returning to the fight against the U.S. after their release. Rep. Jane Harman, D-California, who heads the House Homeland Security subcommittee on intelligence, said the reports about al-Shihri should not slow the Obama administration's determination to quickly close the prison. "What it tells me is that President Obama has to proceed extremely carefully. But there is really no justification and there was no justification for disappearing people in a place that was located offshore of America so it was outside the reach of U.S. law," she told CBS's "The Early Show."
But Rep. Pete Hoekstra, of Michigan, the top Republican on the House Intelligence Committee, criticized the executive order Obama signed Thursday to close the facility as "very short on specifics." Interviewed on the same program, he said there are indications that as many as 10 percent of the men released from Guantanamo are "back on the battlefield. They are attacking American troops."
The militant Web statement said al-Shihri's identity was revealed during a recent interview with a Yemeni journalist. That journalist, Abdelela Shayie, told The Associated Press in a telephone interview on Friday that 35-year-old Saudi man had joined the kingdom's rehabilitation program after his release and got married before leaving for Yemen. Shayie said al-Shihri told him that several other former Guantanamo detainees had also come to Yemen to join al-Qaida.
Al-Qaida in the Arabian Peninsula is an umbrella group of various cells. Its current leader is Yemen's most wanted fugitive Naser Abdel Karim al-Wahishi, who was among 23 al-Qaida figures who escaped from a Yemeni prison in 2006.
Since the prison break, al-Qaida managed to regroup. It set up training camps, has attracted hundreds of young men and launched dozens of bloody attacks against Westerners, government institutions and oil facilities. Most recently, gunmen and two vehicles packed with explosives attacked the U.S. Embassy in Yemen in September, killing 17 people, including six militants. Al-Qaida claimed responsibility for the attack. According to the Defense Department, al-Shihri was stopped at a Pakistani border crossing in December 2001 with injuries from an airstrike and recuperated at a hospital. Within days of his release, he became one of the first detainees sent to Guantanamo. Al-Shihri allegedly traveled to Afghanistan after the Sept. 11 attacks, provided money to other fighters and trained in urban warfare at a camp north of Kabul, according to a summary of the evidence against him from U.S. military review panels at Guantanamo. He also was accused of meeting extremists in Iran and briefing them on how to enter Afghanistan, according to the documents.
Al-Shihri, however, said he traveled to Iran to buy carpets. He said he felt bin Laden had no business representing Islam, denied any links to terrorism and expressed interest in rejoining his family.
Source: abc
Wednesday, October 22, 2008
United States: Judge rejects 'forced' confession
A military judge in Guantanamo Bay has thrown out the U.S. government's evidence against an Afghan detainee because it was obtained under coercion, a rights group said yesterday. The decision came late Wednesday in a preliminary hearing in the trial of Mohammed Jawad, arrested in Kabul in 2002 on charges of throwing a grenade that wounded two U.S. soldiers and their interpreter.
A representative for the American Civil Liberties Union revealed that Mr. Jawad's confession had been rejected as evidence in the case. "Col. Stephen Henley held that evidence collected while Jawad was in U.S. custody cannot be admitted in his trial" because the evidence was "gathered through coercive interrogations," the ACLU said in a press release.
Lawyers for Omar Khadr, 22, accused of five war crimes charges including the murder of a U.S. serviceman, say the prosecution's evidence against the Canadian-born youth also relies on statements Mr. Khadr says have been coerced. Under the commissions system, a judge can accept "coerced" statements if he thinks they were true anyway, but cannot accept statements obtained under "torture."
Source: Canada
A representative for the American Civil Liberties Union revealed that Mr. Jawad's confession had been rejected as evidence in the case. "Col. Stephen Henley held that evidence collected while Jawad was in U.S. custody cannot be admitted in his trial" because the evidence was "gathered through coercive interrogations," the ACLU said in a press release.
Lawyers for Omar Khadr, 22, accused of five war crimes charges including the murder of a U.S. serviceman, say the prosecution's evidence against the Canadian-born youth also relies on statements Mr. Khadr says have been coerced. Under the commissions system, a judge can accept "coerced" statements if he thinks they were true anyway, but cannot accept statements obtained under "torture."
Source: Canada
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