Andy Worthington's Blog, page 39

In Guantánamo Habeas Corpus Case, Lawyers Insist That Trump’s Stated Intention of Not Releasing Any Prisoners Renders Their Imprisonment “Perpetual” — and Illegal

Please support my work as a reader-funded journalist! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the next three months of the Trump administration.

 

On January 11, the 16th anniversary of the opening of the prison at Guantánamo Bay, lawyers for eleven of the 41 prisoners still held submitted a habeas corpus petition to the District Court in Washington, D.C., arguing, as a press release by the New York-based Center for Constitutional Rights put it, that “[Donald] Trump’s proclamation against releasing anyone from Guantánamo, regardless of their circumstances, which has borne out for the first full year of the Trump presidency, is arbitrary and unlawful and amounts to ‘perpetual detention for detention’s sake.’”

CCR’s press release also stated that the lawyers’ filing “argues that continued detention is unconstitutional because any legitimate rationale for initially detaining these men has long since expired; detention now, 16 years into Guantánamo’s operation, is based only on Trump’s raw antipathy towards Guantánamo prisoners – all foreign-born Muslim men – and Muslims more broadly.” The lawyers added that “Donald Trump’s proclamation that he will not release any detainees during his administration reverses the approach and policies of both President Bush and President Obama, who collectively released nearly 750 men.”

In an article marking the submission of the habeas petition, I explained that the eleven men whose lawyers submitted the petition are “Tawfiq al-Bihani (ISN 893) aka Tofiq or Toffiq al-Bihani, a Yemeni who was approved for release by Obama’s Guantánamo Review Task Force in 2010, Abdul Latif Nasser (ISN 244) aka Abdu Latif Nasser, a Moroccan approved for release in 2016 by a Periodic Review Board, a parole-type process, and nine others whose ongoing imprisonment was upheld by their PRBs: Yemenis Zohair al-Sharabi aka Suhail Sharabi (ISN 569), Said Nashir (ISN 841), Sanad al-Kazimi (ISN 1453) and Sharqawi al-Hajj (ISN 1457), Pakistanis Abdul Rabbani (ISN 1460) and Ahmed Rabbani (ISN 1461), the Algerian Saeed Bakhouche (ISN 685), aka Said Bakush, mistakenly known as Abdul Razak or Abdul Razak Ali, Abdul Malik aka Abdul Malik Bajabu (ISN 10025), a Kenyan, and one of the last men to be brought to the prison — inexplicably — in 2007, and Abu Zubaydah (ISN 10016), one of Guantánamo’s better-known prisoners, a stateless Palestinian, for whom the post-9/11 torture program was initially conceived, under the mistaken belief that he was a high-ranking member of al-Qaeda.”

A week later, the judge in the case, Judge Coleen Kollar-Kotelly (who ruled on several Guantánamo habeas corpus cases before the appeals court gutted habeas corpus of all meaning for the prisoners) responded, requiring the government to explain, by February 16, what its policy is regarding the two review processes established under President Obama, the Guantánamo Review Task Force, which, in 2009, approved the release of 156 prisoners, all but three of whom were released under Obama, and the Periodic Review Boards, which, between 2014 and 2016, approved the release of 36 prisoners, all but two of them were released before Obama left office.

Judge Kollar-Kotelly specifically asked “whether the Task Force, PRB, and/or another component of the Government tasked with reviewing the files of prisoners held at Guantánamo Bay, Cuba, continues to consider whether to release or transfer those prisoners, and specifically (a) whether the Government intends to transfer the Petitioners previously designated for transfer by the Task Force and/or PRB, and (b) whether the Task Force, PRB, and/or another component of the Government tasked with reviewing the files of prisoners held at Guantánamo Bay, Cuba, is presently considering releasing or transferring the Petitioners who were not previously designated for transfer.” She also ordered the government to “include a short summary as to the detainment status of each Petitioner.”

On time, surprisingly, the government responded, arguing that, “As the Supreme Court has acknowledged [in Hamdi v. Rumsfeld in 2004], the laws of war permit the detention of enemy combatants for the duration of a conflict,” (and specifically, in a post-9/11 context, via the Authorization for Use of Military Force, passed by the Congress the week after the 9/11 attacks). The government’s lawyers also claimed that, as a result, “Petitioners are not entitled to release simply because the conflict for which they were detained — the non-international armed conflict between the United States and its coalition partners against al Qaeda, the Taliban, and associated forces — has been lengthy.”

Unfortunately, the government felt no pressure to justify the very basis for holding prisoners, which was catastrophically chaotic. Competent tribunals under Article 5 of the Geneva Conventions, held close to the time and place of capture for prisoners who claim that they are civilians and who are not readily identifiable as a combatants, were deliberately shunned by the Bush administration, which, instead, decided that everyone who ended up in US custody was accurately detained and could be held without any rights whatsoever. This stupidly arrogant assertion of US might and infallibility ignored the fact that the majority of prisoners who ended up in US custody were not captured on a battlefield, and, in most cases, were not even captured by US forces, but by their Afghan or Pakistani allies, at a time when substantial bounty payments were being offered for alleged al-Qaeda or Taliban prisoners,

The Bush administration’s position also conveniently ignored the fact that, as a result of Guantánamo being largely filled with people about whom the US authorities knew almost nothing, most of what passes for “evidence” at Guantánamo is only what US forces themselves tortured or otherwise coerced out of the prisoners themselves, who were prevailed upon — through violence, the threat of violence, or through being bribed with all manner of “comfort items” — to make statements incriminating themselves and their fellow prisoners in all manner of terrorism-related or military-related activities that, to a large extent, never actually took place.

So on the one hand, the US authorities have, for 16 years, often had no idea who they are holding, or why, or what they are supposed to have done, and yet, on the other hand, 16 years later, Justice Department lawyers who, in some cases, have spent the whole of that time defending Guantánamo in a disgraceful and unacceptable manner — including resisting every effort by the prisoners to seek fair and balanced evaluations of the justification of their imprisonment via the habeas corpus petitions that were ruled on between 2008-2011, until politically motivated judges in the court of appeals finally succeeded in gutting habeas corpus of all meaning — are now devoting they energies to defending law of war detention as though the circumstances of capture mean nothing.

The Justice Department lawyers also made a point of defending the government’s claimed right to have prisoners approved for release, but then not release them, as though that is somehow morally or ethically acceptable, when it is clearly no such thing, and ended up attempting to justify the prisoners’ ongoing imprisonment as being “indeterminate” rather than indefinite.”

As they put it, “as long as the relevant conflict continues — and it does [] — no constitutional issue arises as to Petitioners’ continued detention. That the duration of that detention may be currently indeterminate — because the end of hostilities cannot be predicted — does not render the detention ‘perpetual’ or unconstitutionally ‘indefinite.’”

On March 9, the prisoners’ lawyers responded, and I’m posting below the whole of their preliminary statement, which sums up well their objections to the government’s position:

The government’s opposition proceeds as if the continuing detention of Petitioners for up to 16 years without charge or trial and without prospect of release by the Trump administration is utterly normal. It is not normal — as a matter of fact and law.

First, despite its platitudes and narrow caveats, the government cannot dispute the Trump administration’s stated determination to foreclose any transfers, regardless of individual facts and circumstances — including of those Petitioners cleared for transfer. The policy, clear from Trump’s campaign commitments and his thorough-going hatred and suspicion of Muslims, has only been reconfirmed since Petitioners’ filing through a February 2018 Executive Order [see here] and the President’s bellicose pronouncements during his State of the Union address. The Periodic Review Board process (part of which was revived only after the filing of Petitioners’ motion) is an exercise in futility; it is feckless and corrupted by command influence and, in any event, as the cleared Petitioners prove, meaningless in light of the President’s policy against transfers.

Second, there is no legal support for perpetual detention of this sort. The government repeats as mantra the proposition that detention may continue as long as active hostilities are ongoing. That maxim, however, cannot so readily dispose of the actual question presented or the human lives at stake. The government’s self-serving conception of “active hostilities” — depending (as it says it does) either upon the actual surrender of all Al Qaeda forces or the decimation of various Al Qaeda splinter groups across the world — will likely never cease. Thus, under the government’s own standards, it can and may well detain Petitioners in perpetuity — in violation of the Constitution and properly construed detention authority under the AUMF.

Perpetual non-criminal detention violates due process. The Due Process Clause applies to Guantánamo because identifying limits on the duration of detention would not be “improper or anomalous” under governing Supreme Court precedent — a proposition the government does not contest — and should have as much force as do the Suspension and Ex Post Facto Clauses, which the government concedes do apply to Guantánamo. Nor is such a due process challenge to duration foreclosed by a proper reading of the actual holdings of the Circuit’s cases the government relies upon. Similarly, the AUMF — on its own terms and read, as it must be, to avoid conflict with the constitutional limitations on detention — cannot permit the perpetual detention Petitioners’ face. The Supreme Court in Hamdi v. Rumsfeld, authorized only limited military detention, cautioned that any such authorization may not extend indefinitely, and expressly prohibited perpetual detention.

Petitioners have been detained without charge at Guantánamo for between 12 and 16 years — longer than the duration of any prior military conflict in US history; and, as a consequence of Trump’s policy, may not have a chance at release for up to seven years. The experiment in indefinite detention at Guantánamo has run its course. The judicial branch cannot cede the legality of these continuing and perpetual detentions to this executive branch. The Court should grant the writ.

So now it’s back to Judge Kollar-Kotelly to make a ruling — and I very much hope that she takes on board the prisoners’ arguments about the meaning of imprisonment under a president who appears to be committed to releasing no one, under any circumstances, and also that she will get to hear of my reminder that the very basis of what passes for evidence at Guantánamo, to justify detaining men in the first place, is and always has been catastrophically flawed.

It is of relevance, I think, that Judge Kollar-Kotelly’s colleague, Judge Gladys Kessler, recognized the shockingly arbitrary and corrupted nature of what passes for ”evidence” at Guantánamo almost nine years ago, in May 2009, in assessing the habeas corpus petition of a Yemeni prisoner, Alla Ali Bin Ali Ahmed, who was released in 2009, and whose case I wrote about in two articles entitled, Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses and Guantánamo: A Prison Built On Lies.

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.

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, The Complete Guantánamo Files, the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.

Quarterly Fundraiser: Still Seeking $2000 (£1500) for My Guantánamo Work, Housing Activism, Protest Music and London Photography

Please click on the ‘Donate’ button below to make a donation towards the $2000 (£1500) I’m trying to raise to support my work on Guantánamo for the next three months!

 

Dear friends and supporters,

It’s Day 4 of my quarterly fundraiser, and I’m grateful to the friends and supporters who have helped me reach 20% of my target of $2500 (£1800) to continue my work on Guantánamo over the next three months. However, I’d like to ask you, if you can, to join in helping me, as, for the most part, a reader-funded journalist and activist, to raise the funds I’m seeking to enable me to keep working — writing the 50 or so articles I publish every quarter, plus all my social media work, and, when they happen, media and personal appearances.

I have no institutional backing for my work, and no revenue stream that comes through the mainstream media and its advertisers’ support, so almost everything I do is dependent on your financial support for me to continue — not just my writing and campaigning to close Guantánamo, but also my work in defence of social housing in the UK (including ‘Concrete Soldiers UK’, the new documentary film that I narrate and am preparing to tour around the UK), my protest music, with my band The Four Fathers, and my London photography project, ‘The State of London.’

If you can help out at all, please click on the “Donate” button above to make a payment via PayPal. Any amount will be gratefully received — whether it’s $500, $100, $25 or even $10 — or the equivalent in any other currency. The donation page is set to dollars, because the majority of my readers are based in the US, but PayPal will convert any amount you wish to pay from any other currency — and you don’t have to have a PayPal account to make a donation.

You can also make a recurring payment on a monthly basis by ticking the box marked, “Make this a monthly donation,” and if you are able to do so, it would be very much appreciated.

Readers can pay via PayPal from anywhere in the world, but if you’re in the UK and want to help without using PayPal, you can send me a cheque (address here — scroll down to the bottom of the page), and if you’re not a PayPal user and want to send cash from anywhere else in the world, that’s also an option. Please note, however, that foreign checks are no longer accepted at UK banks — only electronic transfers. Do, however, contact me if you’d like to support me by paying directly into my account.

I understand that there are huge pressures on everyone these days — except the very rich — and I’m sure you’re also besieged by organizations wanting your financial support, but if you appreciate my work on Guantánamo over what is now the last 12 years, please do help if you can. I’m about to update the definitive six-part list of all the prisoners held at Guantánamo, which I first created nine years ago and last updated in President Obama’s last few months in office, and I’ll also continue to write about, and comment on developments — or the lack of them — at Guantánamo, under Donald Trump, who, of course, remains a dangerous presence in the White House, both here on my website and through the Close Guantánamo campaign, where I’m currently running a photo campaign based on another Close Guantánamo initiative, the Gitmo Clock, which counts in real time how long Guantánamo has been open, and urges Donald Trump to close it for good.

As always, thanks for your support, whether financial or not. I appreciate every one of you who takes an interest in the ongoing crimes of Guantánamo, and my efforts to get the prison closed, and in all the other endeavors that I undertake.

Andy Worthington

London

March 15, 2018

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.

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, The Complete Guantánamo Files, the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the Close Guantánamo campaign.

Nine Months After the Entirely Preventable Grenfell Tower Fire, UN Housing Rapporteur Says UK Government May Have Breached Residents’ Human Rights

Please support my work as a reader-funded investigative journalist, commentator and activist.

 

Today, survivors of the Grenfell Tower Fire last June — and supporters from across London —  are taking part in a Silent Walk that begins outside the offices of Kensington and Chelsea Council and ends by the blackened skeleton of the tower, where over 70 people died. The fire should never have happened, but did so because safety standards have been fatally eroded over many years by those responsible for the safety of tenants and leaseholders — central government, local government, management companies that have taken over the management of swathes of social housing, and contractors.

For me, the fire was the defining moment of 2017, and in summer I wrote a song about it, remembering those whose lives were “so needlessly lost”, and calling for ”those who only count the profit not the human cost” to be held accountable. Three members of my band The Four Fathers — myself, Richard Clare and Mark Quiney, accompanied by my son Tyler beatboxing — were recorded playing the song by a German film crew in autumn. We released it as a video in December, and I’m pleased to note that it currently has nearly 1,500 views on YouTube (posted below) and on Facebook. Please watch it, and share it if you like it. We hope to make a studio recording soon, and would be delighted to hear from anyone in the Grenfell community who would like to be involved, as we would love it to be used to help the survivors.

Yesterday, over 150,000 of us also received notification that Parliament will debate the terms of the official Grenfell Inquiry on May 14, which, presumably, the government hasn’t recognized as marking exactly eleven months since the fire. The date has been set in response to a petition to the government, launched at the end of November, which stated, “Bereaved families & survivors call on PM to exercise her powers under the Inquiries Act 2005 to appoint additional panel members with decision making power to sit alongside Chair in Grenfell Tower Inquiry: to ensure those affected have confidence in & are willing to fully participate in the Inquiry.”

Petitions are eligible for debate when they reach 100,000 signatures, and thanks are due to Stormzy for promoting it last month, when his request for support for the petition, following his extraordinary appearance at the Brits, when he tore into Theresa May for her failures on Grenfell, helped the petition get around 100,000 signatures in a single day.

Criticism by Leilani Farha, the UN’s special rapporteur on the right to adequate housing

Last week, the government — and the British political establishment in general — faced further criticism from the United Nations, when Leilani Farha, the UN special rapporteur on the right to adequate housing, told the Guardian she was “concerned that international human rights standards on housing safety may have been breached, and could have been a factor in the causes of the tragedy last June,” as the newspaper described it.

Farha, a Canadian lawyer, who has been the UN’s unpaid housing investigator since 2014, was in London last week “on an informal visit to meet Grenfell survivors and local residents, at the invitation of human rights law academics and activists,” and, as the Guardian put it, she was “concerned that residents had told her they had been excluded from decisions about housing safety issues before the fire and had not been engaged ‘in a meaningful way’ by the authorities about their views and needs in its aftermath.”

She said she had been struck by survivors’ “feelings of not being heard, of feeling invisible, and not being treated like equal human beings,” adding, “I’m concerned when I have residents saying to me they feel they are not being heard and that they are not always being treated like human beings. Those are the fundamentals of human rights: voice, dignity, and participation in solutions to their own situations.”

As the Guardian described it, she also said that “[s]afety standards in the tower – from the types of cladding used on the building to electrical circuits and ease of access to the building for fire and rescue vehicles – may have breached residents’ human rights to safe and secure housing.”

The Guardian also mentioned the terms of the inquiry, noting that the government “faces increasing criticism from survivors’ groups, residents and local politicians over what they feel is an unrepresentative and overly rigid official inquiry, headed by the retired judge Sir Martin Moore-Bick.”

Farha said that her visit “was not to make a formal assessment of Grenfell,” in the Guardian’s words, but she stressed that she was “concerned that survivors and local residents had been stereotyped and discriminated against on the basis that they lived in social housing,” which “meant they may have been treated less as people with human rights, and more as objects of charity.”

As she put it, striking to the heart of the dreadful inequality that currently reigns, almost unchecked, in the UK, “Residents told me they feel the government’s position is that they should feel lucky that they are going to be rehoused and that they should feel lucky that they had social housing. That doesn’t suggest residents feel the government recognises them as rights holders. The fact that so many residents have said to me they are not being treated as human beings is suggestive of a society that is structured in a way where those in social housing are viewed perhaps as counting less. And that is deeply troubling.”

It is indeed deeply troubling, but it is also accurate, as I can confirm as a long-term resident of social housing. Over the years, social housing — genuinely affordable housing — has gone from being regarded as an important service, in which councils provided as much non-profit housing as possible, as an antidote to the profiteering of private landlords, to something that should only be used by the neediest and the most desperate. That this is a trick ought to be apparent from the fact that, as this narrative has developed, an insane housing bubble has also been allowed to develop, so that more and more people cannot afford mortgages, and are being strangled by unfettered private rents imposed by landlords whose greed is not challenged by any existing legislation. The need for not-for-profit social housing is, therefore, greater than it has been since at least the 1960s, although for the levels of inequality we’re now looking at, the increase in homelessness and the nature of the everyday struggles faced by so many people, it is starting to be more accurate to look back to the Victorian era for where the British political establishment thinks Britain in the 21st century should be.

Farha questioned whether regarding social tenants as inferior “may have influenced the decision to fit the tower with cheaper cladding that turned out to be flammable, reportedly to save £300,000,” as the Guardian put it. As she said, “If the population wasn’t viewed as somehow undeserving, as really lucky to receive the benevolence of state support for housing, if they were viewed as rights holders, I just wonder if that same decision would have been made.”

The Guardian also noted that Farha “has been a persistent critic of what she calls the ‘financialisation’ of housing, by which unregulated global capital is allowed to pour billions into exclusive, hyper-expensive new property developments in cities such as London, excluding local residents from local housing, pushing up rents and and fuelling housing instability,” and in February 2017 the newspaper ran a profile of her, under the heading, ‘Housing should be seen as a human right. Not a commodity.’

At the time, Farha was presenting a paper on housing commoditisation to the UN human rights council in Geneva, and the Guardian noted that her report included an analysis of Kensington, “a prime location for rich investors,” where the “numbers of vacant homes rose by 40% between 2013 and 2014 alone.” Her report stated, “In such markets the value of housing is no longer based on its social use. The housing is as valuable whether it is vacant or occupied, lived in or devoid of life. Homes sit empty while homeless populations burgeon.”

In the February 2017 profile, Farha used the phrase “residential alienation,” which, the Guardian noted, was borrowed from In Defence of Housing, a book by David Madden and Peter Marcuse: “In Vancouver, people were telling me they live in neighbourhoods where this house is empty because it’s been bought as an asset, this is occupied, this one’s empty and this one’s empty. So you have no neighbours, you have schools closing down because there aren’t enough students to go to the school; so your children, if you live in one of these vacated neighbourhoods, are not going to school in your community any more. Shops are closing, restaurants are closing. You see immediately a loss of vibrancy.” The analysis is remarkably similar to that put forward in ‘This dire Battersea Power Station development is genuinely dystopian,’ Owen Hatherley’s new article for the Architects’ Journal, about the horrible Battersea Power Station development, in which he states:

This is where it ends; developers offering cars to investors as incentives to buy flats in what were once meant to be pedestrian-based walkable cities, with empty private cinemas in barely occupied towers, and with what one estate agent describes as ‘empty rooftop bars with no one living at home to buy drinks at them’.

And, whereas many of the luxury riverside developments have been on industrial wastes with few landmarks, here, it is happening around one of the most recognisable and best-loved buildings in London, suffocating it with utterly useless, barely inhabited luxury living solutions, in a city where homelessness has got to the point you can barely move now without walking past people sleeping rough. It is genuinely dystopian. How did things get this bad?

Returning to Grenfell, Leilani Farha “said it felt symbolic that Grenfell Tower was in Kensington and Chelsea, one of the wealthiest and most socially unequal boroughs in the capital,” as the Guardian put it. She said, “My sense is that in London there is an emphasis on the development of property to attract money and wealth to the city. My concern is that is overemphasised, and the standards and wellbeing of tenants in social housing are underemphasised, and that is a structural issue.”

She added, recognizing an issue that is of profound concern to campaigners, and that is the focus of the new documentary film, ‘Concrete Soldiers UK,’ which I narrate, “Social housing is under considerable stress in the city. I’ve heard that many council estates are scheduled for demolition for regeneration projects – which seems to mean the development of high-end properties and the displacement of those living in social housing.”

Farha was not able to meet ministers during her visit. The Guardian noted that “a meeting with the housing secretary, Sajid Javid, could not be scheduled,” but that did not stop a government spokesperson from complaining that, “Had the UN’s special rapporteur on the right to adequate housing approached the government to discuss her concerns we would gladly have met with her to discuss the work we are doing to support the Grenfell community.” Perhaps she was remembering the unprincipled attacks on her predecessor, Raquel Rolnik, who, in 2013, had called for the abolition of the disgraceful bedroom tax on the grounds that it violated tenants’ human rights. Rolnik had “warned that Britain’s relatively good record on housing rights was being eroded by the sell-off and neglect of social housing, and by welfare reforms that left poorer tenants in poverty and despair,” but ministers dismissed her criticisms as a “misleading Marxist diatribe,” and I reported at the time on her treatment in an article entitled, Disgusting Tory Britain: UN Housing Expert Attacked After Telling Government to Axe the Bedroom Tax.

Farha made it clear that she “did not want to imply the UK government had done nothing in the wake of Grenfell,” because it “had done a great deal” and it “was important that ministers had set up an inquiry, she said, even if it appeared to be moving slowly and was not as wide in scope as it could have been.” She also said she was keen to start a conversation with the government, and had “not ruled out writing a formal letter to the UK government setting out her concerns.” She stressed that it was important that the government “engaged seriously and urgently with survivors and residents – who had struck her by their thoughtfulness, expertise, intelligence, and resourcefulness – and that it investigated the structural causes of the fire.” As she put it, “I don’t deny it is complicated, but lives are at stake. I’m hearing stories of suicidality, children being extremely traumatised. These are the days that will make or break people.”

And that’s a conclusion that no one in government should be seeking to dismiss, with a repeat of the Tories’ disgraceful behavior in 2013. The bottom line, however, as, in significant numbers, Grenfell survivors are still not re-housed, is that they are not given anything like the treatment that they would have been given if last June’s disaster had happened in the richer part of Kensington — although, of course, that is unlikely, as those responsible for the safety of housing in the richer parts of Kensington wouldn’t, I presume, be looking to cut corners to ensure greater profits in the first place.

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.

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, The Complete Guantánamo Files, the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.

Quarterly Fundraiser Day 1: Please Help Me Raise $2500 (£1800) to Support My Work on Guantánamo

Please click the ‘Donate’ button to make a donation towards the $2500 (£1850) I’m trying to raise to support my work on Guantánamo for the next three months!

 

Dear friends and supporters – and anyone happening to pass by,

It’s that time of year again, when I ask you, if you can, to support my work as an independent journalist, activist and commentator, working primarily to educate people about the prison at Guantánamo Bay and to get it closed down — and, if you wish, my campaigning work to try and prevent the destruction of housing estates in London and across the UK, my London photography, and my music, with my band The Four Fathers.

I am, it seems, a very modern creation — a writer and campaigner funded almost entirely by my supporters, so if you can help out at all, please click on the “Donate” button above to make a payment via PayPal. Any amount will be gratefully received — whether it’s $500, $100, $25 or even $10 — or the equivalent in any other currency.

You can also make a recurring payment on a monthly basis by ticking the box marked, “Make This Recurring (Monthly),” and if you are able to do so, it would be very much appreciated.

The donation page is set to dollars, because the majority of my readers are based in the US, but PayPal will convert any amount you wish to pay from any other currency — and you don’t have to have a PayPal account to make a donation.

Readers can pay via PayPal from anywhere in the world, but if you’re in the UK and want to help without using PayPal, you can send me a cheque (address here — scroll down to the bottom of the page), and if you’re not a PayPal user and want to send cash from anywhere else in the world, that’s also an option. Please note, however, that foreign checks are no longer accepted at UK banks — only electronic transfers. Do, however, contact me if you’d like to support me by paying directly into my account.

To be a creative person funded by one’s supporters is a situation that has become more and more widespread over the last decade as traditional media, funded by advertising, has collapsed, in a supposedly bright new tech future that, in reality, seems for the most part to be an even more ravenous form of capitalism than that which existed previously — one in which the tech companies make outrageously bloated profits while exploiting their customers, whether they are the writers, artists, photographers and musicians who are increasingly obliged to provide their creative output for free, or the everyday users of mobile phones/cellphones and social media who also, without realizing it, are enriching a small number of already immensely wealthy people with everything they share for free.

That however, may be a discussion best saved for another time. For now, I’d like to share with you my surprise to discover that it’s almost exactly 12 years since I began working full-time on Guantánamo. I had spent six months, from September 2005, trying to work out who was at Guantánamo, but it wasn’t until March 2006 that two events took place that inspired me to dedicate myself to digging into the story of Guantánamo as thoroughly as possible. Those two events were the broadcast of ‘The Road to Guantánamo’ on Channel 4, a part-dramatization/part-documentary about three British prisoners in Guantánamo from the West Midlands, who were known as the Tipton Three, and the publication of ‘Enemy Combatant’ by another British prisoner, Moazzam Begg, both of which focused my attention unerringly on Guantánamo.

With Guantánamo now my focus, the time was absolutely right for the Pentagon to lose a Freedom of Information lawsuit filed by the Associated Press, which obliged the DoD to release, for the very first time, the names and nationalities of the prisoners held at Guantánamo — something that, shockingly, they had refused to do for the first four years and two months of the prison’s existence, as well as thousands of pages of transcripts of the tribunals they had set up to, essentially, rubber-stamp the prisoners’ designation on capture, without any investigation whatsoever, as “enemy combatants’ who could be held indefinitely without charge or trial, and without the protections of the Geneva Conventions.

This information, and subsequent releases of information, were the basis of my book The Guantánamo Files, which I spent 14 months researching and writing, and which was published in 2007, in which I told the stories of around 450 prisoners, whose stories had not previously been told, and organized them into a coherent narrative, showing who was captured where, and why the US government’s claims that they were “the worst of the worst” who were all “captured on the battlefield” were such outrageous lies.

With the book complete, I began writing about Guantánamo here on my website, and, in the last 11 years, have written 2,182 articles about Guantánamo, as well as adding the stories of the other prisoners, initially via a series of additional online chapters, and, from 2011-12, via additional information made available by WikiLeaks, with whom I worked as a media partner on the release of the classified military files about the Guantánamo prisoner that Bradley (now Chelsea) Manning had leaked.

In these 12 years there have been times of hope and times of despair — the hope that Barack Obama provided as a presidential candidate, the disappointment engendered by his failure to close Guantánamo during his eight years in office, despite promising to do so, and the despair of those left behind, now under the control of Donald Trump, who has no interest in releasing anyone from Guantánamo if he can get away with it.

At various times on this 12-year journey I have worked for some mainstream media outlets (the New York Times, the Guardian and Al-Jazeera, for example), and with various human rights organizations (the United Nations and Reprieve, for example), and I have also co-founded two campaigning organizations, Close Guantánamo and We Stand With Shaker, and co-directed a documentary film, ‘Outside the Law: Stories from Guantánamo.’ However, after the Bush years, when it was generally difficult to interest people in the true horrors of Guantánamo, much of Obama’s presidency saw a marked decline of interest in Guantánamo, and, sadly, since Donald Trump’s presidency began, it has in general become even more sidelined. For the latest Close Guantánamo photo campaign, which the photo of me at the top of this article is part of, please visit this page and get involved!

Despite the sidelining of Guantánamo, of course, an injustice on the scale of that particular offshore gulag, as well as all the other vile crimes of the “war on terror,” must never be allowed to be normalized, and this is where your support is so vital. Whenever Guantánamo slips off the radar, and is stranded in a backwater of indifference, it is incumbent on those of us who care about its significance, and who know that every day it is open is an insult to America’s claim to be a nation that respects the rule of law, to keep pushing for its closure. The less interest there is, therefore, the more I need your help to keep trying to remind the world that, outrageously, the prison is still open — and, today, as another initiative of mine, the Gitmo Clock, counts, it has been open for 5,905 days.

So if you can, please support my work.

And, as I noted at the top of this article, if you care about any of my other work, for which I also have no institutional backing — my campaigning to save social housing (see ‘Concrete Soldiers UK’, the film I narrate, my housing articles, and the campaign page here), my London photography, via my project, ‘The State of London’, or my music, via my band The Four Fathers — then please feel free to donate to support these other aspects of my multi-faceted creative efforts to make the world a better place.

With thanks, as ever, for your support, without which, as I hope I’ve made clear, I really can’t carry on doing what I’ve been doing for the last 12 years.

Andy Worthington

London

March 12, 2018

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.

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, The Complete Guantánamo Files, the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the Close Guantánamo campaign.

Trapped in Guantánamo: Haroon Gul, a Case of Mistaken Identity Silenced By Donald Trump

Please support my work as a reader-funded journalist! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the next three months of the Trump administration.

 

To Donald Trump, with his simplistic and wrong-headed approach to the prison at Guantánamo Bay, none of the 41 men still held should ever be released, and, if he were to get his way, new prisoners would be added to the prison’s population.

Blinded by a deep-seated racism, and supported by officials and lawmakers who continue to be driven by a ferocious spirit of vengeance, 16 and a half years after the terrorist attacks of September 11, 2001, Mr. Trump fails to understand that most of the men held at Guantánamo are not, and never were “the worst of the worst,” and fails to understand that holding anyone indefinitely without charge or trial, as it the case for the majority of the prisoners, is a fundamental and profound betrayal of the respect for the rule of law that was supposed to underpin the very creation of the United States of America, 242 years ago this July.

Of the 41 men still held, just seven are facing trials — or, to be more accurate, are caught up in seemingly interminable pre-trial hearings, with one having recently had his trial indefinitely halted by his judge — and with one other man, Ali Hamza al-Bahlul, having been convicted in 2008 (although most elements of his conviction have since been overturned). Two others have agreed to plea deals, one of whom was supposed to have been repatriated to continuing imprisonment in Saudi Arabia last month. 

Of the 31 others, five were approved for release by one or other of two high-level review processes established under President Obama, but are still held, while the 26 others continue, officially, to be held without charge or trial, having had their ongoing imprisonment approved by a parole-type process, the Periodic Review Boards, which was the second of Obama’s two review processes.

Anyone who takes an interest in Guantánamo is supposed to accept that the ongoing imprisonment of these 26 men is justified by their reviews, but that is not the case. While some of the 26 are accused of involvement in terrorism, it is not acceptable that they are not charged and put on trial, and in other cases it is apparent that the men in question were never involved in anything resembling terrorism, but are still detained because they have resisted the injustice of their imprisonment by threatening their captors and/or by engaging in hunger strikes.

In other cases, it is worth considering that the US, as has happened on numerous occasions with Guantánamo prisoners over the last 16 years, made a mistake, and brought someone to the prison who is a case of mistaken identity.

One such case, it seems, is Haroon Gul, an Afghan prisoner who was one of the last men to be brought to the prison — in 2007. Two weeks ago, the Marshall Project, which describes itself as “a nonpartisan, nonprofit news organization that seeks to create and sustain a sense of national urgency about the US criminal justice system,” published a powerful article in which, primarily via Gul’s attorney, Shelby Sullivan-Bennis of Reprieve, journalist Amos Barshad told Gul’s story.

I looked at Gul’s sad story during his Periodic Review Board in 2016, when Shelby Sullivan-Bennis began representing him, after nine years of imprisonment in which, disgracefully, he had no legal representation at all.

As I explained at the time of his PRB, he “was not given an administrative review after his arrival at Guantánamo — a Combatant Status Review Tribunal (CSRT) — which would have made some information about him publicly available, and he is the only prisoner not to be assigned a number specific to Guantánamo. His number, ISN 3148, is actually a number from Bagram. The conclusion to be drawn from all this can only be that he was never regarded as a significant threat — as a CSRT is required to be eligible for a military commission trial.”

I also explained how Shelby Sullivan-Bennis met him for the first time a week before his PRB:

As she explained, “Very little is known to the world about Haroon, and Guantánamo’s secrecy laws currently ban me from filling in the blanks.” She added that she was able to say that “the bright-eyed, chatty young man I met for the first time last week is not allowed to meet me alone for more than ten minutes before government representatives forcibly remove him from the room,” and that, at his PRB, he would “not be allowed to see the evidence against him; the Board can hold its findings against him without ever asking him if the information is true.”

Unfortunately, Haroon Gul’s review board approved his ongoing imprisonment, claiming that he had engaged in military activities against the US, even though Reprieve had already established, to their satisfaction, that he was “an apparent case of mistaken identity by the US government.” He then had another review last year, which again approved his ongoing imprisonment, and since then, his file has also been reviewed by military officials, but without him having an opportunity to engage with the board members again, and his imprisonment was summarily upheld.

Haroon Gul will get another full review eventually, but it doesn’t seem to me that the PRBs can be regarded as trustworthy when it comes to some of the cases before them — including his — and I’m delighted that Amos Barshad followed up on his story to let people know about his plight. I’m cross-posting article his article below, and I hope you have time read it, and will share it if you find it useful.

Guantánamo, Forever

By Amos Barshad, The Marshall Project, February 28, 2018

After nearly a decade in detention, Haroon Gul believed he had a chance at freedom. Then came President Trump.

The message came in on a spring day via the undisclosed U.S. government facility that approves all correspondence out of the military prison in Guantánamo Bay. It was a request for representation from Haroon Gul, a detainee, to Shelby Sullivan-Bennis, an attorney. Gul had never had a lawyer. He was one of the last men in Guantánamo without one.

Now, in 2016, his request was urgent. After nearly a decade of nothing, he was being given the chance to explain himself. It would happen through the Periodic Review Board, an administrative body that considers whether Guantánamo prisoners who have not been charged should be transferred home or to another country. A board representative wrote Sullivan-Bennis an email explaining that Gul, also identified as detainee number ISN 3148, “has requested in writing that you assist him with … proceedings before the PRB, at no cost to the Government.” When the email arrived, Gul’s first hearing was weeks away.

Guantánamo lawyers are famously overworked. At the time, Sullivan-Bennis was juggling five other clients. She and her coworkers at the human rights organization Reprieve asked themselves: How can we possibly handle another one? “And then everyone was like, ‘Let’s just try,’” Sullivan-Bennis recalled. “Because otherwise he’ll be alone.’” She typed Gul a brief note saying that she’d take his case and that she’d come see him soon. She asked if he wanted anything from Guantánamo’s all-purpose department store, the Navy Exchange.

“Dear Honorable Miss Shelby Sullivan Bennis,” he wrote back in sloping, cursive handwriting, “I have no words to express my feeling of gratitude, appreciation and Thanks for your timly legal and moral help in my PRB hearing. I was in a helpless and hopeless state of my mind in my legal affairs you gave me emotional psycholgcal help.”

A few weeks later, they met for the first time in a windowless cement cellblock on prison grounds. Gul sat across a plastic-top table from Sullivan-Bennis in a loose-fitting, tan-colored T-shirt, with his ankle shackled to a metal ring secured to the floor. He’d been detained in Guantánamo since 2007, shortly after Afghan National Directorate of Security forces burst with guns into the rural guesthouse where he was staying outside Jalalabad and threw a bag over his head.

For the first time, he told his story to a lawyer. He was in his early 30s, like her. He had a wife, Halimah, and a 10-year-old daughter, Maryam, living in a refugee camp in Pakistan. Gul himself grew up in a Pakistani camp after violence forced his family to flee his home in Afghanistan. Despite harsh camp conditions, he’d earned an economics degree at Hayatabad Science University. He spoke four languages, including Pashto and Dari. While at Guantánamo he’d learned a fifth, English.

And like nearly every other detainee held at Guantánamo since 9/11, Gul had never been charged with a crime. The U.S. government was justifying his detainment under the law of war. In a secret government dossier on Gul released by Wikileaks, Gul (also known as Haroon al-Afghani) is described as “high risk” and of “high intelligence value.” The dossier alleges that he was an explosives expert and a high-ranking military strategist that had executed attacks on the Northern Alliance on behalf of Hezb-e Islami Gulbuddin, or HIG, a party affiliated with al Qaeda in the 2000s. U.S. intel also indicates that, in 2001, Gul attempted to help Osama bin Laden escape from Tora Bora.

Gul was too polite to put it this way, but he was effectively saying that it was all, all of it, bullshit. His affiliation with HIG was the same as that of millions of other Afghans: The group ran the refugee camps he needed to survive. He said he supported his family by selling small goods, like used books and jars of honey. He said the reason he was in that guesthouse that night was because he was on the road, selling, trying to scrape together some money. He said the Afghans had grabbed the wrong person.

The government’s allegations were built on secret interrogations and unidentified sources named things like IZ-10026. Sullivan-Bennis came to believe that Gul was innocent. It had happened before: An alleged al Qaeda agent named Mustafa al-Aziz al-Shamiri was detained for 13 years before his release; during his PRB hearing, the government admitted it may have had the wrong man.

The PRB process, though, is not about guilt or innocence. It’s akin to a parole hearing: Are you ready to repent? One of Sullivan-Bennis’s supervising attorneys had called it “having to roll over and show them your tummy.” Gul believed he had committed no crimes for which to repent. But he wouldn’t be the first to be granted freedom through the review board by expressing remorse for things he’d never done.

Thomas Wilner is one of the lawyers who won the two landmark Supreme Court cases that established habeas corpus rights for Guantánamo detainees. The PRB process “is not based on evidence,” he told me. “You have to be contrite. What do you tell a client who wants to go, ‘Fuck you! I’m innocent!’”

That first meeting between Gul and Sullivan-Bennis would come just four days before the PRB convened. Then came the hearing.

“So he sits in this white room with oddly comfortable chairs that the detainees have never been allowed to sit in before,” Sullivan-Bennis recalled. “They prop him up at the head of the table, and he sinks into this enormous beige puffy chair and he faces this enormous screen.” On the giant screen were the floating heads of a six-member board representing the Department of Justice and the other federal agencies that weigh in on the clearance process for Guantánamo. “And then, essentially, it’s an interrogation.”

Later, Sullivan-Bennis would identify all manner of reasons why the hearing didn’t break their way. But in her view it all came down to prep—they just didn’t have enough time.

“In making this determination,” the official ruling read, “the Board considered the detainee’s … failure to acknowledge or accept responsibility for past activities. The Board welcomes seeing the detainee’s file in six months with greater candor.”

So Gul was not recommended for transfer. But it was OK. Much higher profile Guantánamo detainees had been released through the PRB. That included Mohamedou Ould Slahi, who’d been implicated both in recruiting three of the 9/11 hijackers and in planning the foiled “Millennium Plot” to detonate explosives at LAX. In all, 36 detainees have been cleared and released through the review board. At least seven of those had not been granted a transfer after their first hearing before eventually winning their freedom.

Toward the end of President Obama’s second term, he had greatly accelerated the process of clearing out Guantánamo. By the end of the Bush administration the detainee population was 245; by the end of the Obama administration, it was 41. As president, Hillary Clinton would likely have been as eager to cut these last men loose: Before leaving her post as secretary of state, in January 2013, Clinton had sent Obama a forceful and detailed memo urging him to shutter the prison for good.

The detainees refer to securing a transfer as “getting your paper.” In the late summer of 2016, there was real reason to hope that Gul would get his. He’d be prepared, properly prepared, for the next PRB hearing. Gul finally, finally, had a lawyer.

There are two prison camps left at Guantánamo. Camp 7 houses 15 high-profile detainees, including Khalid Sheikh Mohammed, the infamous KSM, the alleged “architect of 9/11.” The detainees engaged in military tribunals through the OMC, the Office of Military Commissions, are housed in Camp 7. Slowly, very slowly, legal cases against them are moving forward. And perhaps it’s counterintuitive because of the extremity of their alleged crimes, but they actually have large and extremely competent legal teams behind them, made up of a combination of civilian and JAG attorneys.

Gul is in Camp 6, with the 20 or so other non–high-profile detainees. The allegations against the detainees here are murky or relatively minor or, often enough, both. If their cases had been brought through the federal court system in the United States, they might well have been tried and—convicted or not—released by now. But because of their relatively lesser status, they’re left alone. The OMC system is deeply flawed, defense attorneys and legal experts say. But KSM is still moving toward some form of justice. Someone like Gul—a nobody—had no reason to believe he’d ever be afforded a reckoning.

But he tried. There are two detainees at Guantánamo who have chosen not to engage with the American legal system, according to Reprieve, and had never had representation. Gul was the last detainee to seek a lawyer and not have one.

The exact reasons as to why Gul went so long without representation are messy and rife with the surreality that has come to define Guantánamo. According to Sullivan-Bennis, for a while, prison guards didn’t give Gul access to the official blue envelopes required for all legal correspondence. Their reasoning was that Gul didn’t have an active legal case, so why would he need the blue envelopes? In effect, Gul was being told, once you have a lawyer, you can seek out a lawyer.

Gul eventually managed to get word out to the network of attorneys who take on this kind of work, a tight-knit group informally known as the “GTMO bar.” Some never responded. Some wrote back to say they just couldn’t take on more clients.

For his first three years in Guantánamo, Gul only interacted with prison guards and detainees. In 2010, he was allowed to get a letter out to his family through the International Committee of the Red Cross. He wrote, “I am in Gitmo. Pray for me … I am OK.” Since, he’s been allowed one glitchy, heavily censored phone call every four to six weeks.

Working Gul’s case required long hours in Guantánamo, in those claustrophobic cement rooms. Pretty quickly, Sullivan-Bennis became someone he could talk to. About anything.

He felt his tragedy was grand, for sure. Gul said he suffered physical trauma. As Reprieve would write, after his arrest, he was “blindfolded, shackled, and hung by his arms while they were still cuffed behind his back, stripped and tortured.” Once at Guantánamo, Reprieve said, his interrogators “denied him access to bathroom facilities,” “lowered the thermostat to freezing,” and shackled him for up to 12 hours at a time “without water or food in a position that allowed him neither to fully stand nor sit, preventing any sleep.”

But like anyone, in or out of indefinite detention, he was obsessed with the minor indignities of his life, too. Slights from guards. Uncomfortable living conditions. “He’d never had anyone to talk to about this injustice or that one,” said Sullivan-Bennis. “His detention is the overarching one—but there are hundreds beneath that.”

And really, he just loved to chat. He’d talk about Afghan politics, which Sullivan-Bennis couldn’t engage him much on, and American politics, which she happily could. During the 2016 primaries, Gul watched a lot of the lefty news channel Democracy Now! He told Sullivan-Bennis, “Bernie is concerned with the people!” One day Sullivan-Bennis got a memo from the team that reviews detainee correspondence. “It said, ‘Your client has written a letter to someone besides yourself. And then at the bottom of the memo it said, ‘That person was Bernie Sanders.’”

Most of Sullivan-Bennis’s clients were older than her, some by decades. They were proper, careful, reserved. Gul was a bit of a ballbuster. He’d laugh that they were both too young to know anything. Once, he picked up that Sullivan-Bennis was in a bad mood and riffed: “It’s OK! It’s Guantánamo! It makes everyone feel like they’re at war!”

As they got to know each other, Sullivan-Bennis pushed forward on another front—Gul’s habeas corpus case in the federal court system in D.C. Habeas corpus establishes that a detainee cannot be held indefinitely without grounds.

For Reprieve, this represented the crux of the injustice of his detention. Say Gul had been a high-level HIG operative. Wasn’t it long past time for the government to prove as much in court? Also, in the years since, the Afghan government had actually reached a peace deal with HIG. They were now a legally recognized political party running candidates for office. And besides: Obama had declared the war in Afghanistan over in 2014. So why were we still holding war prisoners?

But Sullivan-Bennis said she hit a wall putting Gul’s case together: The U.S. government wasn’t cooperating. Of the thousands of documents that purportedly made up the case against Gul, only 24 pages had at first been declassified and turned over. As Sullivan-Bennis explained, “It sounds insane, but it’s not at all automatic that, if you’re imprisoned in Guantánamo, you know why.”

In November 2016, Donald Trump was elected president. A month or so after, the ramifications of the shock victory not yet settled, I spoke with Sullivan-Bennis. On the campaign trail Trump had promised to keep Guantánamo open and to load it up with “bad dudes”; he’d also promoted torture of wartime detainees like Gul. “Frankly, we’re hopeful,” she said, “and we’re terrified.”

Gul fell into a pit. “He’s said to me so many times, ‘Shelby, I can’t wait another year. I should go home. I should be at home,’” Sullivan-Bennis said. Gul would express concern for his daughter’s education. When she was able to study, she was an excellent student, regularly one of the best in her class. She loved it so much, Gul explained, that she’d even inspired her mother to go back to school. But life in the refugee camps could be unstable. And in those times, Sullivan-Bennis said, Gul would “repeat over and over, ‘She hasn’t been able to get to school. She hasn’t been able to get to school.’”

In the early months of 2017, Gul and Sullivan-Bennis prepped carefully for Gul’s second PRB hearing. They worked on explaining, in as detailed and direct a manner as possible, Gul’s life before Guantánamo. Gul was prone to circular answers. Sullivan-Bennis drilled him as if she was preparing a client for cross examination. “No,” she would tell him, good-naturedly pushing back as he rambled, “that’s not exactly it.”

They also worked on explaining what his life after would be like. Gul had charted out a business plan for a honeybee farm that he would run in coordination with a local university in Pakistan. Agricultural students would be employed on the farm in a work-study capacity. There’d be a bakery on site, too.

In regard to the extremist ideology of al Qaeda that had purportedly got him locked up in the first place, Gul knew what he would say. It does not comport with his belief system. Al Qaeda oppresses women. He wants schooling for his wife and daughter.

One question was still present: contrition. Gul and Sullivan-Bennis knew the board was looking for repentance. Gul had never wavered from his claim of innocence. And so he had never before raised the possibility of asking for forgiveness. But this was now his second go-around. Post-Trump, perhaps he’d be more desperate than ever. Willing to compromise his truth.

Sullivan-Bennis waited for him to make his decision. “I would never counsel him to lie,” she said. “But I think the detainees should be given the tools to make those decisions for themselves.”

In March, Gul had his hearing. Once again he was trotted into the white room and plopped into the oddly comfortable beige chair. Once again he faced the floating heads on the screen. Once again he made his case for release.

“He answered everything quickly and directly,” Sullivan-Bennis reported back at the time. “We presented the business plans. I think he was great. I think he did really well.”

Gul knew men that had gotten out by throwing themselves at the mercy of the review board. But even then, years into his detention—and with a shred of hope finally in grasp—he didn’t budge. He didn’t apologize. Sullivan-Bennis said, “I don’t think he would ever consider it.”

In April 2017, while on prison camp grounds in Guantánamo, Sullivan-Bennis ran into a government interpreter she knew. She heard, “‘Oh, I think they’re giving Haroon his Final Determination today.’ And I was like, ‘What?!’”

The Final Determination was the government’s response to Gul’s second review board hearing. Per protocol, Gul and Sullivan-Bennis should have been notified it was coming down. No such notification occurred, Sullivan-Bennis said. “I just happened to be physically present at the camp at that particular moment in the morning,” she said, “and I just, like, barged into the meeting.”

It was the same kind of windowless cement room where Sullivan-Bennis and Gul always had their meetings. Gul was on one side of the plastic-top table. Sullivan-Bennis, an interpreter, and a military representative sat on the other.

The military rep read a brief statement: “The Periodic Review Board, by consensus, determined that continued law of war detention of the detainee remains necessary to protect against a continuing significant threat to the security of the United States.”

Gul listened and stayed silent. The representative asked if Gul had any questions. Gul said no. “And he just looked at me,” Sullivan-Bennis recalled. “And I said, ‘I’m sorry.’ And he said, ‘It’s OK. It doesn’t matter.’ And I said, ‘Yes it does.’”

That afternoon, Sullivan-Bennis and Gul met one-on-one. “He’s not a defeatist person,” she said. “But for four hours he told me he was giving up on his life.” Gul wasn’t done seeking legal recourse. He was was done with it all. “He was saying he wanted to give up on his family,” Sullivan-Bennis explained. “He was saying he was giving them false hope. He wanted to let them go and continue their lives.”

Then he apologized. “He said, ‘I’m sorry you have to suffer me.’” Mustering some deep reserves of enthusiasm, Sullivan-Bennis tried to push back. She told him, “This doesn’t mean the end of everything.”

Immediately after Trump’s election, no one actually knew what he would do with Guantánamo or its “forever prisoners.” Months in, it seemed his administration was taking the path of least resistance.

In an email, Pentagon spokesperson Air Force Major Ben Sakrisson confirmed the facts: “Since January 2017, no PRBs resulted in a transfer decision.” Furthermore, five men who had been cleared for transfer by the Obama administration were not being released. The Pentagon did not reply to queries about Gul’s case.

A few months ago, when it became clearer what was happening at Guantánamo, I spoke to Wilner, the Supreme Court lawyer who had won habeas rights for detainees. “Obama was not being honest about his commitment to ending this,” he told me, fuming. “I think, in the back of his mind, he liked the idea that he could keep people except those he wanted to release.”

Frustrated, horrified, he unleashed a bellow somewhere in the direction of the former president: “You left it in Trump’s hands, and now the poor bastards are stuck there! You’re leaving Donald Trump a lawless prison!”

In the fall of 2017, I visited Guantánamo Bay. I sat in on hearings in the Expeditionary Legal Complex. It’s a war court, prefab, plopped in the middle of a disused tarmac. That week, the ELC was holding pretrial hearings in the 9/11 trial, the Office of Military Commission case against Khalid Sheikh Mohammed and the four other detainees charged with conspiring to execute the attacks.

In an infamous photo of KSM from the night of his capture, he looks wild and disheveled and dazed, but also imposing somehow—a menace, a threat. In person, escorted into court by two soldiers in fatigues and blue plastic gloves, in a camo jacket over a white robe, he looked shrunken.

I sat in the back of the courtroom in a viewing gallery separated, with respect to the preservation of classified information, by three panes of soundproof glass and a 40-second audio delay. Little placards posted throughout the room listed rules. Nᴏ ᴅʀᴀᴡɪɴɢ, ᴅᴏᴏᴅʟɪɴɢ, ꜱᴋᴇᴛᴄʜɪɴɢ. Nᴏ ʙɪɴᴏᴄᴜʟᴀʀꜱ.

The defense pushed for discovery. One defense lawyer wanted all information about CIA torture sites, down to the actual building materials. She wanted to know what kind of wall it was that her client’s head had been slammed into over and over again. She wanted to know weather conditions and smell—“smell in the context of torture can be important.”

Another defense lawyer charted out a long list of witnesses he’d like to call over the question of war hostilities. They were major names from a former era. Paul Wolfowitz. Condoleezza Rice. Colin Powell. Donald Rumsfeld. At some point during his presentation, lead prosecutor Brigadier General Mark Martins stood at his desk, hunched over his microphone, and announced, “I’m invoking national security privilege.”

Something had been deemed to be potentially classified. The court gallery was cleared. While it was sorted, we went outside and baked in the Cuban sun near vending machines stocked with Pepsi and Andy Capps’ Hot Fries. We watched a woman feed chocolate to a long, lone iguana. A soldier standing guard behind us clucked, worried about the gastrointestinal impact. That iguana, he told us, was going to have a “bad time.”

Everyone on both sides was muddling forward together, hoping to instill the process with legitimacy. But there was no precedent here. It was hard to ignore the overarching fact: all these years later, and the case was still in pretrial hearings. Everything was trivial. Everything was huge.

And yet, there was something to be said for the sheer existence of the proceedings. Some semblance of jurisprudence was lurching along.

As for Gul’s case, Sullivan-Bennis is still engaged in the habeas process. A year and a half after Reprieve took him on as a client, she said she is still struggling with basic discovery. For one, she said the government had conducted extensive searches but could not find any transcripts of Gul’s many interrogations. The Justice Department declined to comment, citing active litigation.

In January, hoping to bring renewed attention to their indefinite detention, 11 of Gul’s fellow “forever prisoners” filed new habeas petitions in the U.S. District Court in D.C. The motions, which Sullivan-Bennis called “kind of like a class-action lawsuit for GTMO detainees,” were filed simultaneously at 8:30 a.m. on January 11, the 16th anniversary of the opening of the prison. Reprieve was involved in the action, but out of concern that a new petition might hurt his case, Gul was not.

Days later, Trump announced during his State of the Union address that he had signed an executive order to “keep open the detention facilities at Guantánamo Bay,” officially reversing an Obama-era order to shut down the prison.

As a government cable leaked a few days earlier made clear, “The E.O. does not signal a significant policy shift with respect to detentions. Rather, it affirms Guantánamo Bay will continue to … serve as one of several options the United States maintains for the detention of terrorists.” Both sides were making noise. The status quo, however, was not being threatened.

“I’m relieved, to be honest,” Sullivan-Bennis said of Trump’s order, adding that she and other lawyers in the GTMO bar had expected worse. They’d imagined that Trump might explicitly ban the possibility of detainees being transferred out. “Officially, at least, they still have an avenue for release. Whether or not we’re ever going to see this happen is another question.”

When I first began communicating with Sullivan-Bennis, a month before the 2016 election, I did so believing I was tracking the process of getting a man released from Guantánamo. But for now, Trump, it seems, has shut the doors.

I wasn’t able to see Gul while I was in Guantánamo. Press are not granted communication with detainees. He was a few miles away—exact location, undisclosed—in Camp 6. He’d been there for years. Surely, now, he’d be there for years to come.

And yet, Gul still talks about the future. He’s written to Sullivan-Bennis, “I am working on some projects to make my life after Gitmo better. I am still thinking about my wife and daughter.” What else can he do?

Sullivan-Bennis had instructed Gul to stop engaging with the Periodic Review Board. She could no longer force optimism. “I would be hugely surprised if anyone left Guantánamo in the next four years,” she told me. “But I don’t like to say it out loud.”

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.

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, The Complete Guantánamo Files, the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.

The Complete Collapse of Abd Al-Rahim Al-Nashiri’s Military Commission Trial at Guantánamo

Please support my work as a reader-funded journalist! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the next three months of the Trump administration.

 

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.

It’s three weeks since a judge in Guantánamo’s military commission trial system, Air Force Col. Vance Spath, indefinitely halted proceedings in one of the trials’ only active cases — that of Abd al-Rahim al-Nashiri, a Saudi accused of masterminding the bombing of the USS Cole in 2000, when 17 US sailors were killed.

Carol Rosenberg of the Miami Herald, who first reported the story, announced that Col. Spath “shut down the proceedings because of his inability to get defense lawyers back to the death-penalty case.” In October, three civilian lawyers quit the case for reasons that were not specified, but that observers presumed related to them discovering that they were being spied on by prosecutors — or, at least, by the military authorities at Guantánamo, on whose behalf the prosecutors are working.

I reported this story in November, when, adding insult to injury, Judge Spath briefly imprisoned Brig. Gen. John Baker, the Chief Defense Counsel of the military commissions, for refusing a request by him to reinstate the defense team — Rick Kammen, Rosa Eliades and Mary Spears — even though Brig. Gen. Baker was entirely justified in doing so. The loss of Kammen was a particular blow, as he is a death penalty expert, who has been on the case since al-Nashiri was first charged nearly ten years ago, and, by his own reckoning, has “devoted at least 10,000 hours working on the case, traveled to at least seven foreign countries in trial preparation and to Guantánamo 50 times to meet with Nashiri or appear in court,” as Carol Rosenberg explained in October.

In my article at the time of the lawyers’ resignation, I drew on an article in Slate by Philip Carter, a senior fellow at the Center for a New American Security and adjunct professor of law at Georgetown University, who briefly served as Deputy Assistant Secretary of Defense for Detainee Policy under President Obama. I wrote:

After Brig. Gen. Baker’s imprisonment, lawyers working for him sought a writ of habeas corpus, “perhaps the first time in history such a writ has been sought on behalf of an active duty general officer,” as Carter explained, adding that District Court Judge Royce Lamberth expressed concerns that Baker “had no obvious appeals route because he himself was not subject to the commissions’ jurisdiction.”

[On November 3], the commissions’ convening authority, Harvey Rishikof, decided to release Baker from his short-lived but significant imprisonment, although he “merely deferred Baker’s punishment without addressing any of the more basic tensions laid bare by Baker’s actions and Spath’s response,” as Carter put it, adding that al-Nashiri’s pre-trial hearing then continued, “but with just one relatively junior Navy lawyer, former Navy SEAL and 2012 Georgetown law school graduate Lt. Alaric Piette, representing the accused.”

Lt. Piette has no experience of death penalty trials, and in a follow-up article, ‘The Latest Scandal of the Military Commissions at Guantánamo: A Death Penalty Case Without a Death Penalty Lawyer,’ I cross-posted an article by Cassandra Stubbs, the director of the ACLU Capital Punishment Project, who explained how capital cases require the presence of a lawyer with experience of death penalty legislation, and linked to a letter, drafted by the ACLU and signed by 150 death penalty lawyers and law professors, which, as I put it, “register[ed] the capital defense community’s outrage over the legal breakdown, which clearly violates federal and international law.”

In another twist, defense secretary James Mattis then fired Harvey Rishikof, although for reasons that have not been explained, and which may not involve his perceived leniency towards Brig. Gen. Baker. It has been suggested, for example, that he was working towards a plea deal for the five men accused of involvement in the 9/11 attacks, the only other ongoing capital case, which is also caught up in seemingly endless pre-trial hearings that seem to go round in circles.

Back in November, my article drawing on Philip Carter’s assessment continued as follows:

As a result of this epic legal disaster, Philip Carter concluded, accurately, that the military commissions “have gone off the rails and broken down so completely that they cannot be repaired.” As he also stated, “They now labor under the weight of ethical dilemmas like this, years of delay, and confusion about basic rules that make any effort to move them forward impossible.”

He also explained, “All three branches have tried to fix the Guantánamo war courts, and yet, even in their current incarnation, these tribunals are failing. It is time to end the charade of justice at Guantánamo and terminate these trials. The defendants in the dock at Guantánamo should face prosecution by a properly constituted American court — or none at all, and thus be detained under the laws of armed conflict. There simply is no substitute for justice and the rule of law.”

Judge Spath on al-Nashiri’s trial: “ I am abating these proceedings indefinitely”

It took until February 16 for Judge Spath himself to publicly agree with Philip Carter’s assessment, when, as Carol Rosenberg explained, “on the last day of a weeklong hearing in which Eliades and Spears ignored prosecution subpoenas to appear at court by video feed, Spath assembled defense and prosecution attorneys in the court and offered a 30-minute monologue.”

She added, “He listed his frustrations at having his orders ignored, uncertainty over his authority raised by the Marine general’s decision-making and inaction by Pentagon officials to help him. At one point he said he was considering retiring from the Air Force, then declared that he needed clear answers on how to proceed. ‘I am abating these proceedings indefinitely,’ he said twice, at one point adding: ‘We’re done until a superior court tells me to keep going.’”

Rosenberg then stated that Col. Spath “walked off the bench at 10:12 a.m., declaring: ‘We are in abatement. We are out. Thank you. We’re in recess.’” A complete transcript of Col. Spath’s statement is here, and for further information check out Amy Davidson Sorkin’s assessment in the New Yorker.

In one key passage highlighting Col. Spath’s frustrations, Davidson Sorkin noted that he said that, “in his twenty-six years of service, ‘I’ve never seen a judge advocate show up in Class B’s time after time.’ Class B’s are less-than-dress uniforms; Spath had, apparently, spotted officers assigned to the Military Commissions Defense Organization, which manages the cases for defendants like Nashiri and five accused 9/11 plotters, wearing them in his courtroom. Spath continued, ‘I’m not oblivious. I know what that says. What little respect you have for the commission is obvious. A short-sleeve shirt, no tie, no coat; I get it. That’s the message. That’s been the message from the defense for five months.’”

She also wrote:

On an emotional level, Spath blamed the defense for the resulting deadlock. “They don’t follow orders; they don’t follow direction; they don’t obey commission regulations, or rules, or subpoenas, as we saw,” he said. They had exhibited “lawlessness” and “contemptuous behavior”; they had “scoffed at my authority.” He had been, it seemed, dismayed when a Pentagon bureaucrat whom he’d had testify … by video link, had mentioned that there might be a time when commission lawyers would defy an unethical order. Spath thought that the bureaucrat was conflating the idea that military officers could decline to follow unlawful orders with the obligation of lawyers to listen to judges. That confusion, it’s worth noting, is built into the military commissions — the relation between military and civilian rules has never been clear. But Spath found it out of proportion, in a way that he seemed to take personally. “I hope cool minds reflect on what my orders have been,” he said. “I’m not ordering the Third Reich to engage in genocide. This isn’t My Lai.” All he was doing was telling the lawyers to listen to him and get back in court, he said. “Those are the extent of my orders. Not war crimes, people.”

She added, “When a judge starts berating the courtroom to remember that he is not a Nazi, cool minds are not reflecting, on any side. Spath seemed to recognize this. The night before, he said, he had not slept. ‘I went to the gym. I thought maybe the treadmill would either calm me down—which it has, of course. Give me more—more reflection. It did. And I went back and looked again, and looked again.’”

Davidson Sorkin also explained:

What he found is that, whatever his feelings about the defense, on a legal level the blame — and the solution — lay elsewhere. There were, he said, “questions that we need answered, frankly, from a court superior to me.” Spath thought that Baker’s reading of the Military Commissions Act could lead to absurd outcomes, because the defense could then bring the trial to a halt anytime it wanted to, by denying the accused representation. But, he said, maybe Baker was reading the law correctly; maybe Congress, in other words, had put together something that sloppy and absurd and ill-functioning. (It wouldn’t be the first time.) “We need somebody to tell us, is that really what that says, despite, obviously, every other court system in America thinking differently.” With that, Spath seems to have glimpsed what many critics of the military-commissions law have argued all along: the proceedings had revealed “significant flaws” in the military-commission process, Spath said. “We’re going to continue to spin our wheels and go nowhere until somebody who owns the process looks in and does something.”

Revealed: the “smoking gun” in the lawyers’ resignation

On Wednesday, in another breaking story for the Miami Herald, Carol Rosenberg reported on the specific reasons for the lawyers’ resignation last fall, which will only add to the woes of those somehow hoping to fix the commissions. Rosenberg stated that, in a 15-page prosecution filing obtained by the Miami Herald, it was revealed that al-Nashiri’s defense lawyers “quit the capital case after discovering a microphone in their special client meeting room and were denied the opportunity to either talk about or investigate it.”

The revelation came in what Rosenberg described as “a prosecution filing at the US Court of Military Commissions Review signed by the chief prosecutor for military commissions, Army Brig. Gen. Mark Martins, and three appellate lawyers on his staff,” as part of an effort on their part to get the review panel to order Judge Spath to resume the case. The prosecutors revealed that “the listening device that lawyers discovered in an early August inspection of their special meeting room was a legacy of past interrogations — and, across 50 days of ostensibly confidential attorney-client meetings, was never turned on.”

The filing specifically states that, after the three lawyers quit, prison workers “removed flooring, walls, and fixtures” in the meeting room used by the defense lawyers, and “confirmed that legacy microphones, which were not connected to any audio listening/recording device nor in an operable condition, were removed.”

However, Rick Kammen told the Miami Herald that the prosecution account was “outrageous” and “really grotesque selective declassification” designed to permit “some portion of the truth to seep out, but only in ways that the government feels will help it.”

He explained, as Rosenberg described it that, at the time of the resignations, “he was only allowed to say that something had occurred, which he could not describe,” and that, although “he sought discovery from the judge in order to investigate the episode as well as a hearing,” his requests were denied. As Rosenberg added, even Judge Spath’s denial is classified.

Kammen told the Herald, “Our concerns were much greater than what they appear to admit was there.” He added, however, that even the limited information disclosed by the prosecution “demonstrates that either Colonel Spath was lied to by the government or in many of his statements he was lying to the public, the press and the victims in a way that was absolutely shameful and disgraceful — by casting it as fake news.”

Rosenberg also explained that the prosecution’s filing is not part of its appeal, but merely a response to “a Feb. 28 bid by Nashiri’s lone defense attorney, Navy Lt. Alaric Piette, to block the appeal on jurisdictional grounds,” with the prosecution adopting Judge Spath’s assessment of Brig. Gen. Baker’s refusal to reinstate the three lawyers as a “strategy” to create a “triumphant stalemate” that “has proven destructive of the rule of law,” which succeeded in “so handcuffing and frustrating the military judge that he has indefinitely abated the proceedings below and is contemplating retirement from active military service because of his shaken faith in the law and what it means to be a lawyer.”

Despite the prosecution’s efforts at papering over the scandal, those scrutinizing the commissions are unimpressed, wondering, as Rosenberg put it, “why the discovery was considered a national security secret in the first place.”

Stephen Vladeck, a University of Texas law professor, asked, “If this really was an innocuous slip-up with unplugged microphones, why has the government apparently tried so hard to cover it up?” and, in a tweet, Hina Shamsi, the director of the American Civil Liberties Union’s National Security Project, asked, “what else is being kept secret?” Vladeck also pointed out that the disclosure “calls into serious question the legal ruling at the bottom of this dispute, in which Judge Spath concluded that there was no impermissible interference with the relationship between the defense attorneys and their client.”

Crucially, Rick Kammen also explained that “he was still bound by his understandings of what was classified at the time he resigned to not say what is missing in the prosecution account.” Speaking off the record, two defense attorneys told Rosenberg that “[o]ne thing people with war court security clearances were told at the time … was that they were forbidden to say the word ‘microphone.’” The lawyers added that “[o]ther words were declared taboo in discussing attorney-client meeting sites,” but they “declin[ed] to say the words because they may still be classified.”

As Rick Kammen put it, “It’s good to see the truth beginning to come out, but the reality is more than what they’ve declassified.”

Expect to hear more in future as this story refuses to go away — and as the military commissions continue, very evidently, to not be fit for purpose. Will someone with respect for the law finally put the commissions out of their misery, so the cases can be moved to federal court, where they belong?

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.

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, The Complete Guantánamo Files, the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.

Celebrating 300 Days of My Photo Project, ‘The State of London’

Please feel free to support ‘The State of London’ and my photo-journalism with a donation, if you wish. I receive no institutional funding for it whatsoever.

 

300 days ago, on May 11, 2017, I began publishing a photo a day on Facebook as part of a photo project called ‘The State of London.’ I’d actually begun the project five years before, on May 11, 2012, when I’d first started cycling around London taking photos of whatever interested me, the intention being to create a photographic record of the capital at this particular time in its history — under Tory rule, with the Olympics about to begin as the project started, and with hideous towers rising up everywhere, as the latest phase of the primary focus of capitalism in London over the last 20 years — an endless, artificially-sustained housing bubble that is a disaster for almost everyone except the very rich, and, of course, the developers.

As I began cycling around London and taking photos, I decided that I would visit all 120 of inner London’s postcodes — the ones beginning WC, EC, SE, SW, W, NW, N and E — as well as trying to visit as much of outer London as possible. In the first rush of my enthusiasm, I hadn’t genuinely taken on board quite how big London is, and how long it takes to cycle across it, while being regularly distracted by photo opportunities. It took me until September 2014, if I recall correctly, to visit all 120 postcodes, and, to date, I’ve only visited a handful of the outer postcodes — in particular, those nearest to me, for example, designated BR (for Bromley) and CR (for Croydon).

As the project has developed, I suspect that some of my enthusiasms have become apparent. To some extent, I have come to regard myself as a barometer of the weather, because I cycle almost every day, whatever the conditions (which, along the way, has also helped to keep me healthy, and has made me realise that we are meant to be outdoors much more than we generally are), and the photos inevitably reflect that, with some photos capturing torrential rain, for example, which is generally quite rare, and others capturing the dullness of the typical overcast weather that defines so much of the British weather (and, by extension, the British psyche — once a heavy dose of Puritanism has also been added). Other photos capture the beauty and clarity of the many different types of sunlight — at different times of the day, and at different times of the year, and I freely admit that I’m always in search of the strong, low light and long shadows that can be found towards the end of the day, and that I particularly love.

Throughout the project, I have been fascinated by social housing — primarily council estates — but I have to point out that it’s unfortunately impossible to take an interest in social housing without being aware that some of the new developments rising up, which I’m also chronicling assiduously, and with emotions ranging from exasperation to anger, are doing so not on brownfield sites, but on the sites of former council estates, which are being knocked down as cash-strapped councils cut deals with private developers. The councils pretend that it is the only way they can offer housing to those who need it, when the reality is that it is an abject capitulation to the most rapacious forces of modern capital, and few in housing need end up being catered for, as existing tenants (and leaseholders) are largely driven out of the area, and no one on housing waiting lists gets offered a home.

As a result of my interest in social housing, it features prominently in the photos — and in my work in general. The Grenfell Tower fire in June last year was the most significant event in recent memory for me, the ultimate betrayal of trust by those responsible for the safety and security of those living in social housing, and I have included Grenfell in the project since then on several occasions. It is also the subject of a song, ‘Grenfell’, by my band The Four Fathers, and the housing crisis in general is also discussed in other songs by the band — check out, for example, ‘London’, whose cover features photos from ‘The State of London.’ I’m also the narrator of a new documentary film about the crisis, ‘Concrete Soldiers UK’, and I recently set up a campaign page, ‘No Social Cleansing in Lewisham’ as a focal point for the various resistance campaigns in the borough where I live.

I also regularly photograph shops across the capital, although I try to avoid any photos at all of any corporate chains, and I’ve also photographed numerous lost or disappearing pubs. I’m also drawn to any cemeteries or parks that cross my path, where nature makes its presence more felt than in general. I also regularly cycle along the river, where, both north and south of the water, the opportunities to cycle are, commendably, considerable, and I also regularly cycle along the Regent’s Canal, and the Limehouse Cut, leading to the River Lea, all of which I love as much as the River Thames, and all of which provide extraordinary routes across London that bypass the traffic-choked road network — the Regent’s Canal running through Hackney to Islington and then on through Camden, and along the edge of Regent’s Park to Little Venice, by Paddington, where the Grand Union Canal then heads west to Birmingham, and the Limehouse Cut running through east London to Bow, where it meets the River Lea, which heads up through Stratford to Clapton, Tottenham and Edmonton, and, eventually, on to Luton.

There is, I admit, an inevitable geographical bias to the photos. I now know almost the whole of south east London like the back of my hand, and I’m also very familiar with much of east London (which I generally visit via the Greenwich Foot Tunnel and the canals mentioned above, or sometimes via the Overground train network), and parts of south west London, as well as the West End and the City. However, I freely concede that it’s much more difficult to get to parts of west London and north London, and I’ve only managed to visit some of the furthest postcodes on one of two occasions, although I look forward to the arrival of spring, and to making some more long-overdue long-distance trips.

Today, as I mark the first 300 days of photos on Facebook, I’ve posted photos from 80 of those postcodes, and from four of the outer postcodes. Of the 290 photos in total (because there are days when I wasn’t in London), 40% are from south east London and 20% from east London, and there is also a spread of dates, from 2012 to 2018, with 2013 and 2014 being the most popular years, containing 75 and 60 photos respectively. To date, just ten postcodes have ten or more photos — seven in south east London clustered around my home in SE4 (SE1, SE8, SE10, SE14, SE15 and SE16), two in east London (E1 and E14), and one in the West End/west London (W1, which contains Soho, Mayfair and Marylebone).

I’m very pleased to have attracted hundreds of followers for ‘The State of London’, both on Facebook and on Twitter, where I set up an account a few months after the Facebook page, and I hope to keep steadily attracting followers. In the long run, I hope eventually to get round to properly activating the website that I set up several years ago, but have not had the time to develop. I’d also like to make some prints and have an exhibition, and collate some of the photos and accompanying essays into a book, but I’ll need to attract much more support for that to happen. Please do get in touch if you can offer assistance in any way.

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.

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, The Complete Guantánamo Files, the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.

Ahmed Al-Darbi: Still Held, the Guantánamo Prisoner Who Was Supposed to Have Been Sent Home Two Weeks Ago

Please support my work as a reader-funded journalist! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the next three months of the Trump administration.

 

On Friday, Ahmed al-Darbi, a Saudi prisoner at Guantánamo, publicly criticized his government for failing to secure his release from the prison on February 20. The  release date had been agreed last October as part of a plea deal he had initially agreed to in February 2014.

In what the New York Times described as “an unusual statement” conveyed through his lawyer, he said, “It’s shameful. Unlike other countries, the Saudi government never even provided me with an attorney all these years.” He added, “And now my own government is an obstacle to my repatriation. What kind of country abandons its citizens in the custody of another government for 16 years? My country won’t take a step that was agreed on four years ago so that I can finally go home. It’s been my daily dream for four years to see my wife and children.”

Under the terms of his plea deal, al-Darbi admitted that he played a part in a 2002 attack by Al-Qaeda on a French oil tanker, the Limburg, off the Yemeni coast, in exchange for a promise that he would be repatriated, after cooperating further with the US, to serve out the rest of his sentence in Saudi Arabia. As I explained in October, when he was given a 13-year sentence, his sentencing didn’t take place before “because it was dependent upon him providing testimony for the trials of other prisoners, testimony that he undertook [last] summer, providing videotaped testimony against Abd al-Rahim al-Nashiri, who is on trial for his alleged involvement in the bombing off the USS Cole in 2000, and a deposition in the case of Abd al-Hadi al-Iraqi, another prisoner facing a trial by military commission.”

On the weekend of February 10-11, al-Darbi undertook what should have been his last appearances before the authorities at Guantánamo, as al-Iraqi’s attorneys had the opportunity to  question him on “the truthfulness of his statements and memory,” as Carol Rosenberg described it for the Miami Herald.

“In sworn testimony,” she wrote, al-Darbi, who is now 42 years old, and has been in US custody since 2002, “described morphing from a lying, feces-flinging prisoner with a bad behavior record in the maximum-security Camp Five prison to a cooperating witness now cloistered in Camp Echo, an annex of the prison compound across the street,” where, as a prosecution witness, he has been “rewarded with a comfortable cabin-style lockup where he can garden, paint, exercise, learn English by Rosetta Stone, cook meals for his interrogators and attorneys and watch American comedy TV.”

Rosenberg added that he “has his own kitchen with a freezer stocked with meat and spices,” and noted that al-Darbi agreed with “what sounded like a shopping list” read out by defense attorney Air Force Maj. Yolanda Miller, who stated that the prison authorities provide him “with lamb, rabbit, chicken, shrimp and other halal meat.”

She explained how al-Darbi, a “stout Saudi in a dark blue suit and tie,” added goat to the list “with a grin, adding, ‘I love chicken, and I don’t see any issue with that. I still have it in my freezer until now.’”

She further added that he has “[c]ilantro, cumin and cloves to cook with using a hotplate, blender and microwave in his kitchen; treats like Strawberries n’ Creme Oreos, baklava, Turkish delight and a pecan pie,” and “a garden where he said he was growing what sounded like the ingredients for ratatouille — eggplant, tomatoes, zucchini and green pepper,” as well as papaya. Crucially, cooperation had “also earned him monthly phone calls with his Yemeni wife and children, now living in Saudi Arabia.”

When it came to al-Darbi’s deposition regarding Abd al-Hadi al-Iraqi, one of the last prisoners to arrive at Guantánamo, in 2007, Adam Thurschwell, one of the Iraqi’s defense lawyers, questioned al-Darbi about the early years of his torture and abuse “in an apparent bid to discredit” his identification of al-Iraqi, which involved him leading al-Darbi “through a lurid description of his first year or more in US custody, drawn from sworn court documents,” when he “was beaten, sleep deprived, hung by the wrists, threatened with rape in interrogation then sent to unwanted rectal exams by US military doctors, kept nude and forced to empty other detainees’ feces buckets with his fingers.”

Al-Darbi was also asked about his experiences at Guantánamo, where he arrived in March 2003, and testified that “he was kept in solitary confinement, deprived of sleep and subjected to midnight-to-dawn, no-bathroom-break questioning in an interrogation room stinking of urine and vomit.” Threats at Guantánamo, he said, “included to rape him, to send him to Israel or Camp X-Ray, which supposedly closed a year earlier.” At Guantánamo, he said, “Interrogators had photo copies of pages of the Quran [and] would throw them on the ground with sex photos and pictures of mutilated bodies.”

Rosenberg added that he “looked morose” during his statements, describing it “as a period of helplessness and hopelessness” in contrast to his “more cheerful testimony about his previously unheard of list of special ‘comfort items.’” In further description of what he was provided with in exchange for his cooperation, Rosenberg described how he “has a battery-powered Oral B Pro Health toothbrush, with replacement heads, a Magic Bullet blender, free weights and a spin bike for exercising, and Under Armour T-shirts and athletic socks to wear when he works out in his compound.” Rosenberg noted that al-Darbi added “Nike also” to Yolanda Miller’s list.

Miller proceeded to suggest that al-Darbi’s perks, and his imminent release, were only dependent on him “tell[ing] the government what it wants to hear,” but al-Darbi refused to be led. “What’s requested is the truth and nothing but the truth,” he said.

However, despite the promise that al-Darbi would be released on February 20 to serve the rest of his sentence in Saudi Arabia, the date came and went without any change in his circumstances. Instead, as Charlie Savage described it in the New York Times, “the Pentagon announced he would remain at Guantánamo for the time being.” In a statement, Cmdr. Sarah Higgins, a Defense Department spokeswoman, “said the US government was still waiting for the Saudi government to provide assurances permitting the departure to move forward, but hoped that would happen soon.”

Responding to the disappointing news, al-Darbi said, “I felt like I got hit by a truck. I felt destroyed, physically and morally.” He added, “Instead of being called by my first or last name in my own country, I’m still being called ‘768’ [his prison number], still here in this place.”

Ramzi Kassem, a law professor at City University of New York (CUNY), who has been al-Darbi’s lead defense counsel since 2008, “appealed to Saudi officials to focus on his client,” as the Times put it. “I understand that senior Saudi officials are preoccupied with other matters,” he said, but added, “It’s still disappointing to read statements by US spokespeople indicating that the cause of delay is the Saudi government. This arrangement has been a long time coming. We expected smooth and timely implementation and hope that both countries are working hard to fulfill the agreement soon.”

Savage noted that, “At the time of Darbi’s plea deal, Saudi Arabia and the United States exchanged diplomatic notes agreeing to the transfer. Under those terms, the process was to begin with him submitting a request to prosecutors, which the United States would then send through diplomatic channels to the kingdom. If Saudi Arabia concurred, the notes said, the kingdom would inform the United States ‘and initiate procedures’ to carry out the transfer at Saudi expense. Or, if it did not concur, the kingdom would ‘promptly’ say so.”

Kassem confirmed that al-Darbi “submitted his transfer request to [the] commission’s prosecutors in August,” and “suggested there was little left to negotiate in terms of the specifics of diplomatic assurances.” As he put it, “The diplomatic notes that the United States and Saudi Arabia exchanged in 2014 reflect the full framework we negotiated for Mr. Darbi’s transfer to Saudi custody. Any additional terms or assurances deemed applicable should be familiar from the many repatriations of Saudis from Guantánamo.”

Savage added, “It remains unclear how long it took for the Pentagon to pass Darbi’s request to the State Department, and when the US Embassy in Riyadh in turn presented it to the Saudi government. A State Department spokeswoman declined to discuss the matter beyond expressing its support for the Pentagon in trying to carry out the transfer under the plea deal, saying the government would not ‘detail private, diplomatic conversations.’”

Savage also made a point of noting that “[t]he unexpected limbo in which Darbi finds himself may have larger consequences for the military commissions system,” explaining that “[h]is fate could encourage — or discourage — other detainees who may consider cooperating and serving as witnesses in exchange for a deal to eventually leave Guantánamo.”

When the news broke that the February 20 deadline had been missed, Kassem spoke to NPR for a feature, telling them, “Frankly, it would make little sense for the US government to renege on a deal with my client after describing his testimony as, quote, ‘unprecedented’ in counterterrorism prosecutions to date. That would virtually guarantee that no one else would cooperate with the US government and its military commissions.”

On that same program, other lawyers and former government officials sung too remind the world that al-Darbi is not the only prisoner whose release has been approved. Five other men, who are not known to have committed any specific crimes, and are, therefore, considerably less significant than al-Darbi, remain held, despite having been approved for release by high-level government review processes established under President Obama — three approved for release in 2009, and two others in 2016.

Here’s the transcript of NPR’s program dealing with these men:

David Welna, NPR: Meanwhile, five other detainees remain in Guantánamo even though members of half a dozen federal agencies had cleared them for release before Trump took office. Chicago lawyer Tom Durkin represents one of them.

Tom Durkin: Our client is stranded there because there’s no procedures from the Department of Defense to secure the release.

David Welna: The last administration’s special envoy who arranged prisoner transfers at the Pentagon has not been replaced. Attorney Shelby Sullivan-Bennis also represents Guantánamo captives who’ve been cleared for release. She says nothing’s happening.

Shelby Sullivan-Bennis: In speaking to embassies of my clients who are cleared, the response is, well, I’m not sure where to go because our country desk doesn’t have anyone to speak to. You know, no one answers the phone. There is no office. What can we do? There’s nothing to do.

David Welna: The U.S. State Department also once had its own special envoy for Guantánamo.

Lee Wolosky: That used to be my office. And my office now really functionally does not exist.

David Welna: That’s Lee Wolosky. He was the Obama administration’s last State Department official charged with finding countries to receive Guantánamo captives whose continued imprisonment was judged no longer necessary.

Lee Wolosky: My job was to move them out after six agencies and departments of the United States government unanimously concluded that a particular individual no longer needed to be in Guantánamo. And there’s no indication that this administration is doing anything to move them out of Guantánamo.

In response, Rear Adm. Edward Cashman, the new commander of the Guantánamo prison, attempted to reassure NPR’s listeners that the last review process initiated by President Obama, the Periodic Review Boards, was still in place, “to make a determination regarding whether or not those detainees represent a continuing threat to US military personnel, US forces, operations, allies, civilians.”

The PRBs are a parole-type process that reviewed 64 prisoners between 2013 and 2016, and approved 38 for release, with all but two being freed before President Obama left office. However, lawyers for eleven of the “forever prisoners” whose ongoing imprisonment was upheld by PRBs, are arguing, in a case currently before there District Court in Washington, D.C., that the PRB process is now toothless under a president, Donald Trump, who has publicly declared his intention not to release any prisoners from Guantánamo.

It is still expected, I believe, that Ahmed al-Darbi will be released, because of the importance of honoring plea deals in the military commissions, but the Trump administration’s position regarding the other prisoners — except for the nine others, of the 41 men still held, who are facing or have faced trials — remains a cause for concern, not just for those of us who want to see Guantánamo closed, but also for the judge, Coleen Kollar-Kotelly, faced with deciding whether Donald Trump has, effectively, sealed Guantánamo shut, closing the door on even the shadow of any sort of due process. In an absurd response, filed on February 16, the deadline set by Judge Kollar-Kotelly, the Trump administration claimed that detention at Guantánamo is not “indefinite” but “indeterminate.”

It is not known when Judge Kollar-Kotelly’s ruling will be delivered, but I fervently hope it won’t be a disappointment.

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.

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, The Complete Guantánamo Files, the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.

UK Government Demonstrates Its Contempt for Justice in Dealings with ISIS Suspects Nicknamed “the Beatles”

Please support my work as a reader-funded journalist! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the next three months of the Trump administration.

 

Britain has a dark and brutal history, but principled members of its establishment played a major part in establishing fundamental human rights following the horrors of the Second World War, only to see those rights undermined when it didn’t suit the government — in Ireland in the 1970s, for example, and, since 9/11, as the US’s stoutest ally in the law-shredding “war on terror” that the Bush administration declared after the terrorist attacks.

Just months after 9/11, Tony Blair began imprisoning foreign nationals, suspected of involvement with terrorism, without charge or trial, and on the basis of secret evidence, and his government also subjected British terror suspects to internal exile and house arrest under “control orders.”

When the Tories took over in 2010, promises made by David Cameron to banish this bleak landscape were quickly sidelined, and Theresa May’s six-year tenure as home secretary, from 2010 to 2016, was a horrendously dark and racist time, as May sent vans around Britain’s streets telling immigrants to go home, crowed at the Conservative Party conference about extraditing Muslim terror suspects to the US, just after refusing to allow a white Briton to be extradited, persistently stated her vile authoritarian desire to remove the UK from the European Convention on Human Rights, and, in 2013, stripped two dual national British citizens of their British citizenship, while they were in Syria, and then told the US government where they were, so they could be killed in drone strikes. I reported all off this, and more, in an article in July 2016 entitled, As Theresa May Becomes Prime Minister, A Look Back at Her Authoritarianism, Islamophobia and Harshness on Immigration.

In November 2017, May appointed a new defence secretary, Gavin Williamson (replacing Michael Fallon), who almost immediately caused consternation by suggesting that “Britons who have fought for Islamic State abroad should be hunted down and killed to ensure they never return to the UK,” as the Guardian described it.

Williamson told the Daily Mail, “A dead terrorist can’t cause any harm to Britain. I do not believe that any terrorist, whether they come from this country or any other, should ever be allowed back into this country. We should do everything we can do to destroy and eliminate that threat.” His remarks, as the Guardian described it, “put him at odds with the head of the terrorism watchdog, who recently said the UK could attempt to reintegrate young and naive jihadists who wanted to return to the UK.” Max Hill, the independent reviewer of terrorism legislation, “warned of the danger of ‘losing a generation’ of men and women by automatically using the courts to punish them.”

In response to Williamson’s comments, Labour MP Dan Jarvis, a former British Army Major who served in Iraq and Afghanistan, wrote, in a Guardian article, “Williamson’s comments are at best naive – the hubris of someone insufficiently experienced for their position. But at worst they are morally, legally and practically wrong. They imply a desire for extrajudicial killing to form part of Britain’s security policy. This is so radical a departure from all that we should value, and the way that we should conduct ourselves, that it is hard even to countenance.”

In January, Britain faced further pressure on its stance towards British members of ISIS, when it was revealed that the last two members of a group of four, dubbed “the Beatles,” had been captured in Syria, as Martin Chulov reported for the Guardian. The two were Alexanda Kotey and El Shafee Elsheikh, “the final two of an infamous quartet of Britons who acted as jailers, torturers and executioners of foreign aid workers and journalists for more than two years from mid-2013,” as Chulov put it. The other two were “Mohammed Emwazi, the brutal executioner killed by a US drone in November 2015, and Aine Lesley Davis, who was captured in Istanbul in the same month,” and given a seven and a half year sentence in May 2017.

The Guardian, which noted that “Elsheikh, 29, moved to the UK from Sudan with his family in the 1990s, while Kotey, 34, has a Ghanaian and Cypriot background,” also reported that, “In formally designating the two captured men as terrorists last year, the US state department said they were members of a four-strong Islamic State ‘execution cell’ which was responsible for holding captive and beheading more than 27 hostages and torturing many more,” adding, “As a guard for the cell, Kotey likely engaged in the group’s executions and exceptionally cruel torture methods, including electronic shock and waterboarding,” while “Elsheikh was said to have earned a reputation for waterboarding, mock executions, and crucifixions while serving as an Isis jailer.”

News of their capture prompted conflict within the British government. Williamson said, “Do I want them back in the United Kingdom? No, I don’t.” He was speaking after meeting the US defense secretary, James Mattis, and, as the Guardian noted, the issue “threaten[ed] to cause a diplomatic rift,” because the US “favours Isis fighters being tried in their countries of origin.”

Refusing to endorse Williamson’s view, home secretary Amber Rudd, who was clearly responding to delicate and ongoing diplomatic discussions, rather than just making aggressive and bellicose statements, said, “The important thing is that they have been arrested and the important thing is, to us, that they will face trial. I can’t be drawn at the moment on where that will be but I am absolutely convinced and absolutely committed to making sure that they will face trial because the security of the United Kingdom will always come first.”

On Radio 4’s Today programme, former national security adviser Peter Ricketts said, “I can absolutely understand that people don’t want these guys back, they sound despicable,” but added, crucially, “On the other hand we do believe in the rule of law and in accountability.”

Significantly, however, the British government’s enthusiasm for stripping the citizenship of dual nationals appears to be undimmed. The Guardian noted that a report in the Times “suggested the two men had been stripped of their British citizenship,” and, “while the Home Office has refused to officially confirm their statuses, a Whitehall source told the Press Association [that] they were ‘not British subjects.’” Elsheikh, 29, moved to the UK from Sudan with his family in the 1990s, while Kotey, 34, has a Ghanaian and Cypriot background.

The latest news, as the New York Times reported yesterday, is that, “according to officials familiar with the deliberations,” the British government “wants the Trump administration to provide assurances that American prosecutors will not seek the death penalty against two British Islamic State suspects who were recently captured in Syria — and is threatening to withhold important evidence about them as leverage.” The New York Times added that the British “are also insisting that the United States promise to prosecute the two men in a civilian court, rather than taking them [to] Guantánamo,” an option suggested by media outlets seeking to tie the case to Donald Trump’s enthusiasm for sending new prisoners to Guantánamo.

Significantly, the New York Times reported that “Mattis, whom Mr. Trump has tasked with leading a policy review about what to do with newly captured terrorism suspects, does not want the military to take on the headache of holding the men in long-term detention and prosecuting them in the troubled military commissions system.”

It is more likely, therefore, that the two men will end up in federal court on the US mainland. As the New York Times explained, “While the American military has interrogated Mr. Kotey and Mr. Elsheikh for intelligence purposes, it has not yet read them Miranda warnings and re-interviewed them in hopes of eliciting confessions that could be used as courtroom evidence.”

The New York Times also noted that its sources told them that the Justice Department “is now trying to decide whether the Southern District of New York or the Eastern District of Virginia would handle the prosecution.”

The New York Times also reported that “[t[he parents of four Americans who were kidnapped by the Islamic State and abused in various ways before their killing — [Kayla] Mueller and three men who were beheaded, James Foley, Steven Sotloff and Peter Kassig — recently wrote an op-ed in the New York Times calling on the United States government to prosecute the suspects in civilian court and not to seek the death penalty.”

As they stated, “We want the world to know that we agree with the longstanding British government position that it would be a mistake to send killers like these to the military prison at Guantánamo Bay, or to seek the death penalty in court. Either path would make them martyrs in the eyes of their fanatic, misled comrades in arms — the worst outcome.” They added, “Instead, they should be tried in our fair and open legal system, or in a court of international justice, and then spend the rest of their lives in prison.”

Nevertheless, it is still unclear why the UK is so enthusiastic about washing its hands of the two men. As Lord MacDonald, the director of public prosecutions from 2003 to 2008, said after news of the men’s capture was reported last month, “regardless of whether they have been stripped of their citizenship, the men could still be tried in the UK for kidnap and torture under the universal jurisdiction principle,” as the Guardian put it. As MacDonald described it, “There is a mountain of evidence for kidnap and torture.”

And as one of the group’s hostages, French journalist Nicolas Henin, who was eventually set free, explained last month, calling for them to be put on trial in Britain, “I would like to see them brought back to Britain. I would like to see all other European jihadis brought back to their home countries, to be judged fairly in their home country.”

Are we to conclude, therefore, that the Tories’ mania for stripping the citizenship of dual nationals is more important to them than delivering justice in the UK? I think we should be told. Because if it is, then I suspect that what they’re working towards, eventually, is being able to strip the citizenship of British-born nationals, making them stateless. And that’s something that should worry us all.

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.

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, The Complete Guantánamo Files, the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.

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

Please support my work as a reader-funded journalist! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the next three months of the Trump administration.

 

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.

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, The Complete Guantánamo Files, the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.