Andy Worthington's Blog, page 67

Close Guantánamo World Exclusive Video: Shaker Aamer Urges President Obama to Shut the Prison Now

Please support my work! I’m currently trying to raise $2700 (£2000) to support my writing and campaigning on Guantánamo for the next three months.

Yesterday, I visited Shaker Aamer at his home in London, to record a short video message to President Obama, of Shaker urging the president to close the the US prison at Guantánamo Bay before he leaves office in January.

Shaker was the last British resident in Guantánamo until his release last October, and I, along with many others, worked hard to secure his release — via the We Stand With Shaker campaign, the Save Shaker Aamer Campaign and the London Guantánamo Campaign, and through working with supportive MPs and the media.

The video I recorded yesterday was for the Close Guantánamo campaign that I set up in January 2012 with the US attorney Tom Wilner, and, specifically, for the Countdown to Close Guantánamo initiative that I launched in January this year with music legend Roger Waters (ex-Pink Floyd).

For the Countdown, every 50 days those calling for the closure of Guantánamo send in photos of themselves holding posters reminding President Obama how many days he has left. The recording of the video yesterday coincided with 100 days remaining for President Obama to close the prison, and if you’d like to join us, please do. Print off a poster, take a photo with it, and send it to us. See the photos here and here, and see below for Shaker’s video, via YouTube (it’s also on Facebook here):

Nearly a year on from Shaker’s release, he still manifests the charisma, the enthusiasm for life and the thirst for justice that first emerged from descriptions of him while he was held at Guantánamo, from his own words, when they were allowed out of the prison by the authorities, and, towards the end of his long and unjust imprisonment, via his voice, calling out for justice — captured by a CBS news team as they walked the cell blocks of Guantánamo, which I later used in my “Song for Shaker Aamer”, recorded with my band The Four Fathers. The original version is here, and also listen to the post-release version with the lyrics amended to reflect Shaker’s freedom (and see me playing it live in Washington, D.C.)

Graceful as ever in his video (which was his idea, suggested to me a month ago, when we last met), Shaker urged President Obama “to carry the torch in this dark time we are living and lead and go forward with it,” and called on him to be reassured that, in closing Guantánamo, “you are doing the right thing.”

He added, “Even if they don’t approve of you today, I have no doubt in the future the whole world will remember that you did something great because closing that place [Guantánamo] is going to help the whole world — not just the people inside Guantánamo.”

Yesterday’s 100-day anniversary was a difficult milestone in President Obama’s long journey towards the closure of Guantánamo, with just three months remaining for him to fulfill the promise to close the prison that he made so confidently on January 22, 2009, his second day in office.

Over 2,800 days later, 61 men are still held, even though the president is to be commended for having secured the release of 46 men this year, and for having accelerated the Periodic Review Board process that has led to 33 men being approved for release. 13 of these men are still held, however, along with seven others approved for release back in 2009, and President Obama needs to make sure these men are released as soon as possible.

Whether President Obama will succeed in closing the prison before he leaves office is, at present, unknown, although I believe it is worth maintaining the pressure on him to try and make sure it happens. He is, admittedly, stymied by cynical Congressional obstruction, with lawmakers having passed legislation to prevent him from bringing any Guantánamo prisoner to the US mainland for any reason.

He could issue an executive order to bypass Congress, but that is fraught with problems of legitimacy, as well as the problems of moving and holding the remaining prisoners on the US mainland if the local authorities resist his plans, as seems probable. In theory, he could order the military to sort out a facility, but as we have learned over the years, some in the military — in positions of power and influence — are evidently happy to keep Guantánamo open.

The most optimistic outcome might be if Democrats win the Presidential Election and a majority in Congress, allowing him to close the prison in the dying days of his presidency in the new year, but whatever the case it is important to keep the pressure on the administration, and Shaker’s message is a key part of this pressure, as are your photos, so if you haven’t sent us a photo yet, please do!

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 debut album ‘Love and War’ and EP ‘Fighting Injustice’ are available here to download or on CD via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for 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).

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, and The Complete Guantánamo Files, an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see 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.

2700 Articles, 2000 on Guantánamo: Please Support My Work at This Milestone in My Nine-Year Career as an Independent Online Journalist and Activist

Please support my work! I’m currently trying to raise $2700 (£2000) to support my writing and campaigning on Guantánamo for the next three months.

Dear friends and supporters,

I hope you’ll forgive me for stepping back for a moment and reflecting on the fact that I’ve just published my 2700th article since I began writing, on an almost daily basis, about Guantánamo at the end of May 2007. This milestone also marked my 2000th article about Guantánamo. An archive of all my articles is here and here.

I’m delighted to have made it this far, as an independent journalist, researcher, commentator and activist, as much of my work over the last nine years has been unpaid, or, more specifically, has only been possible because of your financial support — and this is particularly true now. Every three months I ask you to support my work, as I try and raise $3500 ($2600), but this quarter, perhaps because interest in Guantánamo is waning, I’m still trying to raise $2700 (£2000).

So please, if you can help out at all, click on the “Donate” button above to donate via PayPal (and I should add that you don’t need to be a PayPal member to use PayPal). Any amount will be gratefully received, whether it is $10, $25, $100 or $500 — or any amount in any other currency (£5, £15, £50 or £250, for example).

Since I launched my latest fundraiser a month ago, I’ve also been updating some of my specific larger scale Guantánamo projects — specifically, The Full List of Prisoners Charged in the Military Commissions at Guantánamo, which I first published in March 2014, and my six-part definitive Guantánamo prisoner list, which I first published in 2009 and last updated in 2014. The prisoner list names every prisoner held at Guantánamo and links to everything I have written about them over the last nine years — and, previously, in my book The Guantánamo Files.

The updates are as follows: Part 1 (covering ISN/prisoner numbers 1-133), Part 2 (ISNs 134-268, including Shaker Aamer, the last British resident in the prison, for whose release I campaigned for many years), Part 3 (ISNs 269-496), Part 4 (ISNs 497-661) and Part 5 (ISNs 662-928, including former child prisoner Omar Khadr, my friend Omar Deghayes, the torture victim and best-selling author Mohamedou Ould Slahi, and Abu Wa’el Dhiab, the Syrian who fought in the US courts to have videos of his force-feeding released, and is now on a life-endangering hunger strike in Uruguay, where he was freed in December 2014). I’ll be updating Part 6 (ISNs 929-10029) before the end of the week.

I hope these projects are useful to anyone researching the long and ignoble history of Guantánamo, and thanks for listening. Normal service will resume tomorrow, but in the meantime please feel free to join the Countdown to Close Guantanamo, which I launched in January (with Roger Waters) via the Close Guantánamo campaign that I set up in January 2012 with the US attorney Tom Wilner. Tomorrow, with photos, we’ll be marking the fact that President Obama will have just 100 days left to close Guantánamo, as he promised when he first took office in January 2009, and I hope you can join us. See here for more information, and also check out the Gitmo Clock, which counts down the time remaining until the end of the Obama presidency.

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 debut album ‘Love and War’ and EP ‘Fighting Injustice’ are available here to download or on CD via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for 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).

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, and The Complete Guantánamo Files, an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see 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.

Please Read My New Article for Al-Jazeera, About How Torture Victims in Guantánamo Should Be Allowed a Visit by UN Rapporteur Juan Méndez

Yesterday, I was delighted that Al-Jazeera published my op-ed, “Guantánamo torture victims should be allowed UN visit,” the first op-ed I’ve written for Al-Jazeera for over a year a a half. You can check out my archive of Al-Jazeera articles here.

The op-ed came about as a result of my recently renewed focus on the military commissions at Guantánamo, a broken system that is incapable of delivering justice to the ten men still held who are facing — or have faced — military commission trials. For more, see my recent articles, Not Fit for Purpose: The Ongoing Failure of Guantánamo’s Military Commissions and Guantánamo’s Military Commissions: More Chaos in the Cases of Abd Al-Rahim Al-Nashiri and Majid Khan, and also my recent update of The Full List of Prisoners Charged in the Military Commissions at Guantánamo.

61 men are still held at Guantánamo, and while 20 have been approved for release, and will hopefully be freed soon, and 23 others continue to be held without charge or trial, those men are, at least, subject to periodic reviews of their cases, whereas those facing trials are caught in a system that is proceeding with such glacial slowness that it is uncertain if a date for their trials can be set with any kind of certainty, and this, of course, is a profound failure of justice considering that they have been in US custody for up to 14 years.

As part of my renewed focus on the military commissions, I have been in touch with military lawyers representing prisoners facing trials, and through them I received a letter to Juan Méndez, the UN Special Rapporteur for Torture, which was written by Ammar al-Baluchi, a “high-value detainee” and one of five men accused of involvement in the 9/11 attacks.

Like all the “high-value detainees,” he was held and tortured in CIA “black sites,” before his arrival in Guantánamo, and his letter deals with his torture, and the refusal of the US authorities to give him — and other torture victims at Guantánamo — appropriate medical and psychological care.

Although al-Baluchi and other “high-value detainees” arrived at Guantánamo over ten years ago, in September 2006, it is only recently that anything they have said or written has been unclassified by the US authorities, who have spent most of the time they have been imprisoned desperately trying to hide all evidence of their torture. That changed in December 2014, when the executive summary of the Senate Intelligence Committee’s report into the CIA detention program was published, and it is since then that the veil of silence in which the torture victims had been enshrouded has started to be lifted.

It is to be expected that the US authorities will ignore al-Baluchi’s request, as Juan Méndez has been trying to visit Guantánamo since he became the rapporteur in November 2010, but the US government has never accepted that UN observers must be allowed to meet with the prisoners, and so no visit has taken place.

I hope you have time to read the article, and to share it if you find it useful. I also note that it was published on the same day that the New York Times published “How US Torture Left Legacy of Damaged Minds,” a major review of how ‘[b]eatings, sleep deprivation, menacing and other brutal tactics have led to persistent mental health problems among detainees held in secret CIA prisons and at Guantánamo.” I hope it stands as a kind of companion piece to that feature, with its demand for a UN visit that would also be a suitable outcome of the Times article.

The Times article mainly related the accounts of former prisoners — including Younous Chekkouri (aka Younus Chekhouri), Ahmed Errachidi and Tarek El Sawah (aka Tariq al-Sawah), all held at Guantánamo, and Mohamed Ben Soud, held in “black sites” but not at Guantánamo — but it also included a section on the “high-value detainees,” including al-Baluchi.

The head of his defence team, James G. Connell III, told the Times that his client “associates sleep with imminent pain.” In a letter, al-Baluchi wrote, “Not only did they not let me sleep, they trained me to keep myself awake.”

The Times article also noted that “Guantánamo physicians have prescribed Mr. Baluchi antidepressants, anti-anxiety drugs and sleeping pills,” according to Connell, who “sends him deodorants and colognes to keep flashbacks at bay.” As he explained, disturbingly, “The whole time he was in CIA custody, you’re sitting there, smelling your own stink. Now, whenever he catches a whiff of his own body odor, it sets him off.”

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 debut album ‘Love and War’ and EP ‘Fighting Injustice’ are available here to download or on CD via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for 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).

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, and The Complete Guantánamo Files, an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see 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.

Theresa May and the Conservative Party’s Alarming White Fascist Aspirations

It was always worrying that Theresa May, on being handed the leadership of the Conservative Party, unelected by either the Party or, more crucially, the British public, was immediately positioned as a safe pair of hands by the corrupt mainstream media, an illusion that was widely embraced by ordinary members of the general public. Immediately, it became apparent that a strong-looking woman in charge of the Tory party — and suddenly the ghost of Margaret Thatcher was back amongst us — appeals not just to Tory boarding school inadequates, but also to the British people in general, as a result, I believe, of the deep damage caused to the British psyche by centuries of class division and Puritanism.

Metaphysically, Theresa May was the only senior official left standing after the brutal denouement of the EU referendum — with David Cameron gone, George Osborne doomed, Boris Johnson disgraced for having campaigned to win something he didn’t even believe in, and Michael Gove just plain creepy — but that didn’t mean she should have been anointed to lead, after the last irritant, Andrea Lettsom, was disposed of.

As I hope I made clear in my article, As Theresa May Becomes Prime Minister, A Look Back at Her Authoritarianism, Islamophobia and Harshness on Immigration, she is not a safe pair of hands at all, but an alarming authoritarian, with a track record on counter-terrorism that is dangerously Islamophobic — remember her obsession with deporting Abu Qatada, rather than putting him on trial if he had committed a crime (see here and here), remember how she crowed about extraditing a Muslim British citizen with Asperger’s to the US, but refused to extradite a white British citizen with Asperger’s (see my Al-Jazeera article here), and remember how she stripped British citizens in Syria of their citizenship so that they could be killed in US drone attacks (see here and here).

As a result of the above, it is no surprise that removing Britain’s human rights obligations has become one of the priorities of May’s government, even though it is idiotic, as I explained in my 2015 article, What Does It Say About the Tories That They Want to Scrap Human Rights Legislation? At the time, however, it looked considerably more difficult than it does now, because withdrawing from European human rights legislation (the European Convention on Human Rights, written in 1949-50, and with a prominent role in its drafting taken by the British Conservative MP and lawyer Sir David Maxwell-Fyfe, who had been a prosecutor at the Nuremberg Trials) means withdrawing from the Council of Europe, and EU membership is dependent on CoE membership. So we leave the EU and we can also join the dictatorship Belarus as the only countries in the whole of Europe (as conceived in its widest sense) that do not subscribe to European human rights legislation.

The bonfire of rights continued at the Tories’ conference last week, with promises to exempt soldiers from pesky human rights legislation, via Theresa May’s chilling promise that “we will never again in any future conflict let those activist left wing human rights lawyers harangue and harass the bravest of the brave: the men and women of our armed forces.”

While British soldiers continue to face calls for them to be held accountable for torture and extrajudicial murder in Iraq, May’s plans — conceived with the not entirely bright defence secretary Michael Fallon — are deeply worrying.

Beyond the assault on human rights, the Tories’ conference was also notable for Theresa May, nominally a pro-Remain MP, enthusiastically endorsing an extremist Leave position, and presenting the UK as a bastion of white isolationism — with exceptions made for supportive non-white citizens, and, of course, any foreigner with money, whatever their colour.

For Politics.co.uk, Ian Dunt described the change in his article, “The Tories have finally become UKIP,” noting how, after May “confirmed on Sunday that she would pursue a hard Brexit and pull Britain out of the single market, [w]hat even 12 months ago would have been considered economically insane is now a cosy consensus.” As he also explained, May’s “hard Brexit” policy “actually goes further than that which Nigel Farage’s allies once held in the past. Even Aaron Banks, the aggressively eurosceptic donor to UKIP, not so long ago supported the Norway option [in which Norway has access to the single market but no vote over EU rules], which apparently now is some sort of wishy washy betrayal of the democratic will.”

And in this idiotic vision of an isolated white Britain, the assault on immigrants also fully embraces the UKIP position. In the last week, the Tories have, as Ian Dunt described it, “pledged to phase out foreign doctors, cut down on the numbers of foreign students, put landlords in jail for not checking their tenants’ residency papers and ‘name and shame’ companies for hiring foreign workers.”

On foreign doctors, Theresa May suggested, as the Guardian described it, that “foreign doctors will only be working in the NHS for an ‘interim period’ until more UK-trained physicians are available.” On BBC Breakfast, “[a]sked whether she could reassure foreign NHS staff they were welcome to stay for now,” she said, “Yes. There will be staff here from overseas in that interim period – until the further number of British doctors are able to be trained and come on board in terms of being able to work in our hospitals.”

Describing people working in the NHS, for years or decades, as “interim” workers is spectacularly insulting, of course, but it is typical of this government’s post-referendum racism and xenophobia.

At the Tories’ conference, Amber Rudd, the new home secretary, also promised to clamp down on foreign students — a favourite ploy of May’s when she was home secretary. As the Independent described it, Rudd “said there had to be ‘tougher’ regulation for students on lower quality courses and raised the prospect of English language tests for people coming to study here. Under her plans, taxi drivers will have mandatory immigration checks, landlords could face jail if they let a flat to someone in the country illegally and more EU criminals would be deported.”

And yet, as Martin Vander Weyer pointed out in the right-wing Spectator last month:

In the post-Brexit landscape … one thing is clear: soon we’ll have to … start pushing British products the world wants to buy. One such is education, at our universities, independent schools and English-language colleges — an export sector calculated in 2011 by the now defunct Department for Business, Innovation and Skills to be worth £17.5 billion.

Not only does this sector attract foreign exchange, plug funding gaps for cash-strapped universities and support thousands of jobs, it also lays the ground for future relationships with students who return home to embark on business careers. And as the global population of international students grows by 6 per cent a year, it’s a great ‘soft power’ opportunity to bolster British influence around the world.

However, under Theresa May as home secretary, “UK visas granted to non-EU foreign students actually fell by 6 per cent a year, to 187,000 in 2014. Behind this were two much-bandied claims: that many colleges were ‘bogus’, and that up to 90,000 non-EU students a year were outstaying their visas. A report this June by the campaigning organisation ExEdUK pointed out that of the more than 800 colleges which lost their licences to sponsor international students, many fewer deserved the ‘bogus’ label: lots were ‘legitimate, quality-assured institutions who have found the sponsorship compliance system too complex’. And Destination Education, published this week by the IPPR thinktank, concludes that the 90,000 figure for overstayers is ‘not reliable enough to be used as a guide for policy.’”

Amber Rudd also caused consternation to business leaders by proposing to force companies to disclose how many foreign workers they employ. As the Guardian described it, “senior figures in the business world warned the plan would be a ‘complete anathema’ to responsible employers and would damage the UK economy because foreign workers were hired to fill gaps in skills that British staff could not provide. One chief executive of a FTSE 100 company, whose workforce includes thousands of EU citizens, said it was ‘bizarre.’”

The Guardian added that “[t]he proposals, which are subject to consultation, have also been questioned from within the Conservative party. Lord Finkelstein, the Tory peer, told the BBC it was a ‘misstep’, while Tory MP Neil Carmichael, chairman of the House of Commons education select committee, said the policy was ‘unsettling’ and would ‘drive people, business and compassion out of British society and should not be pursued any further.’”

The most powerful criticism of Rudd’s stance came from James O’Brien of LBC, who read out what he said was an excerpt from Rudd’s speech: “For the state must draw a sharp line of distinction between those who, as members of the nation, are the foundation and support of its existence and greatness, and those who are domiciled in the state, simply as earners of their livelihood there.’ That sounded exactly like what Rudd had been saying, but O’Brien then reveals that it was actually from Adolf Hitler’s Mein Kampf.

In his article, Ian Dunt also made a point of focusing on the Tories’ bullying arrogance” and their “thinly-concealed hatred of immigrants.” Adding, “I used that word specifically,” he explained, “Over this conference, the veil of respectability has slowly being lifted away. This is not even really about immigration anymore. It’s about immigrants themselves. Look where the constant ‘othering’ of immigrants has taken us.”

He continued:

Take the company listing policy. The implicit assumption in the idea we would ‘name and shame’ companies who hire migrant workers is that there is something shameful about having done so, that there is something morally wrong about having foreigners on your pay roll.

Take the foreign doctors policy. Doctors are to be ‘allowed’ to stay until we train up sufficient indigenous workers. As if these people, who have often been here for decades, treating, caring for and saving us, are here at our tolerance. Because after all, what other possible attitude could you have towards an immigrant? Certainly not equality. Certainly not human co-existence. Certainly not friendship. They are different, a foreign infection. At best we allow them temporary residence. And that is us at our kindest.

Take the language used by Brexit secretary David Davis, as he talks about “our own population”. What does he mean by this? Those who have citizenship? Those who were born here? Those with both parents from here, or just one? White people? “Our own” is us, so who is them? We all know. Wink wink.

For many, let’s go ahead and admit it, it’ll be white people. And they will hear a secretary of state validating their view. For others, maybe one parent is enough. For some — oh how liberal — anyone born here. But it’s clear which game is being played. The us vs them game. The game whereby there are ‘our people’, our tribe, our group, and then the others. Who will never be us.

Take Liam Fox and his admission that the rights of EU citizens in the UK are “one of our main cards” in EU negotiations. Just stop for a moment and take that in. They’re not people, with families and friends and lives and careers here, not people who say hello to the man at the shop when they buy the milk, not people who do research or start companies, or fund the NHS, or teach kids. They are things. They are a tactical advantage. They are a means, not an ends. Our people are ends. European migrants? They are one of our main cards.

And what happens when we misuse our “main cards” as Theresa May and her hapless, dimwit ministers have misused everything else? After all, deciding when to trigger Article 50 was one of the UK team’s main pieces of leverage, and she threw that away by casually saying when she’d do it on the Andrew Marr programme. Only after having done so did she ask Europe for preliminary talks, like a gunman throwing down his weapon and then telling his opponent to surrender. Europe of course said no.

What happens if they fail to leverage these cards like they did the Article 50 card? What is the logical consequence of Fox’s comments?

Mass deportations. It sounds alarmist doesn’t it? No, it wouldn’t involve Nazi officers banging on doors. It would all be very polite and English. A very polite but firm Home Office letter would come through the letter box and it would have a deadline. If you don’t make that deadline — or if the authorities say they have reason to believe you won’t — the immigration enforcement vans come.

The sudden exodus of three million people from the UK. That is the suggestion. That is the threat. That is what is implicit in Fox’s card game. It might be the most shameful policy Britain has considered in living memory. It is so shameful no-one dares say it out loud. They only imply it. But that is what he is proposing. That is the reality.

In conclusion, Ian Dunt pointed out that, although Theresa May told her supporters that “the Tories are the new centrist party, [i]n actual fact they have drifted further to the authoritarian nativist right than at any point since Thatcher and arguably before then,” and added, “We are entering a profoundly dangerous moment in British political history.”

Is this over the top? I wish I could say that it is, but I can’t. After all, it was Theresa May who, as home secretary, conceived and implemented the blunt and insulting racism that involved vans with a message for immigrants to “go home” that she sent around the streets of London, it was Theresa May who showed a disgusting lack of sympathy for immigrants last September, after the photo of three-year old Ayman Kurdi, drowned on a beach, went viral and generated huge sympathy for the plight of refugees. At the time, I noted her hardline approach, when, as I put it, she “was refusing calls for an EU quota for refugees, and disagreeing with a suggestion by the EU’s High Representative, Federica Mogherini, that ‘no migrants’ intercepted at sea should be ‘sent back against their will.’”

I have also despised Theresa May ever since, as I also described it this summer, she refused “to grant visas to the foreign spouses of UK nationals if the latter do not earn £18,600 a year, which, it should be noted, is more than the national median income for the UK, and roughly the same as the median income in London.” As I explained, “I have friends who have been affected by this, and am shocked and appalled that this arbitrary decision that love can only cross national boundaries with a price tag has been allowed to stand, tearing apart tens of thousands of blameless families and causing untold damage to the children affected.”

And yet, this kind of callousness is, it seems, typical of Theresa May and the party she and her ministers are gleefully dragging to the far right. All decent people should be worried, and we should — we must — find a way to make our voices heard on the suicidal rush to a “hard Brexit” and an isolated UK before it is too late.

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 debut album ‘Love and War’ and EP ‘Fighting Injustice’ are available here to download or on CD via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for 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).

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, and The Complete Guantánamo Files, an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see 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.

President Obama Has 100 Days Left to Close Guantánamo: Send Us Your Photos

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.

Next Tuesday, October 11, President Obama will have just 100 days left to close the prison at Guantánamo Bay, as he promised to do when he first took office in January 2009. Today, as shown on the Gitmo Clock, which we launched earlier this year, he has 105 days left.

To encourage him to fulfill his promise, we at “Close Guantánamo” have spent all year running the Countdown to Close Guantánamo, which our co-founder Andy Worthington launched in January on Democracy Now! with the music legend Roger Waters.

We began with a poster that read, “President Obama, you have one year left to close Guantánamo,” and then repeated it at 50-day intervals — 350 days on February 4, 300 days on March 25, 250 days on May 14, 200 days on July 3, 150 days on Aug. 22. See the photos here and here, here too and also here.

We are delighted that over 450 photos have been submitted to the Countdown to Close Guantánamo to date, and we hope you will join us next Tuesday to remind President Obama of his unfulfilled promise. Print off the poster here, take a photo with it, and send it to us. We’ll post them here, and on our social media accounts (Facebook and Twitter).

As it stands now, it looks as if President Obama will not succeed in fulfilling his promise to Guantánamo. Congress remains opposed, and laws are still in place to prevent him from bringing any Guantánamo prisoner to the US mainland for any reason. He could issue an executive order, bypassing Congress, but that would bring him into conflict with officials in whatever state or states he chose to bring the prisoners to. As Commander in Chief, it ought to be viable for him to move the men to a military facility, but as we have seen repeatedly in analyses of the problems with closing Guantánamo, there are officials within the Pentagon who do not want to see Guantánamo closed.

If Hillary Clinton wins the Presidential Election in November, and if the Democrats have a majority in both the Senate and the House, it’s possible that President Obama could do something in the small window of opportunity he would have in the new year, before Clinton’s inauguration, but we think it seems more likely now that the task of finally closing Guantánamo will fall to his successor.

We are, however, relieved that President Obama has been doing so much in the last year to work towards Guantánamo’s closure. 55 men have been released in the last year, and throughout this year the pace at which Periodic Review Boards have been taking place has noticeably increased. The PRBs are a parole-like process to assess whether men previously regarded as “too dangerous to release” or as candidates for prosecution can be freed, and out of 64 men’s cases in total, 43 reviews have taken place this year. Overall, the PRBs have led to recommendations that 33 men should be freed (and 20 have been released ), while 23 others have had there ongoing imprisonment upheld, and eight decisions have yet to be taken. Just 61 men are still held, and 20 of those men have been approved for release, and should be released before President Obama leave office.

We remain concerned that the military commission trial system, for the ten men facing trials, is an irredeemably broken system, and we also remain concerned that the men whose ongoing imprisonment has been upheld by the PRBs are still suffering a second-rate form of justice, not held as prisoners of war according to the Geneva Conventions if they were combatants, and not being put on trial if they are regarded as having been involved in any way with terrorism, which is a crime.

We hope that eventually, when Guantánamo is closed, these men will be able to make fresh legal challenges regarding the inadequate basis for their ongoing imprisonment (the Authorization for Use of Military Force, which Congress passed immediately after the 9/11 attacks).

For now, however, we believe that the least we can do is to keep making noise about the need to close Guantánamo before President Obama leaves office, and we hope that you will join us in the latest phase of the Countdown to Close 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 debut album ‘Love and War’ and EP ‘Fighting Injustice’ are available here to download or on CD via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for 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).

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, and The Complete Guantánamo Files, an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see 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.

My Six-Part Definitive Guantánamo Prisoner List: Updated for the First Time Since 2014

Please support my work! I’m currently trying to raise $2700 (£2000) to support my writing and campaigning on Guantánamo for the next three months.

I’m currently in the process of updating my six-part definitive Guantánamo prisoner list, which I first created in March 2009, and have updated five times since — in January 2010, July 2010, May 2011, April 2012 and March 2014.

To date, I have updated Part 1 (covering ISN numbers 1-133) , Part 2  (ISNs 134-268, including Shaker Aamer), and Part 3 (ISNs 269-496) , and I will be completing the updates of Part 4 (ISNs 497-661) , Part 5  (ISNs 662-928) and Part 6  (ISNs 929-10029) over the next few days.

This update to the definitive Guantánamo prisoner list — like so much of my work — is only possible with your support. I have no institutional or media backing for it, so if you can support me at all, please do. I’m currently still trying to raise $2700 (£2000) to support my work on Guantanamo for the rest of the year if you can help. Please click on the ‘Donate’ button above to make a donation via PayPal (and see here for further information).

The definitive prisoner list is a key element of my ongoing work (now in its eleventh year) calling for the closure of the US prison in Guantánamo Bay, Cuba, and telling the stories of the men held there. The first fruit of my initial research was my book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison, in which I told the story of the prison at Guantánamo Bay, established, for the first time, a chronology explaining where and when the prisoners were seized, told the stories of around 450 of these prisoners, and provided a context for the circumstances in which the remainder of the prisoners were captured.

Since May 2007, I have written 2,000 articles about Guantánamo, expanding on and updating my initial work, providing research, analysis and commentary, as well as regularly campaigning to get the prison closed — particularly via the Close Guantánamo campaign I established in 2012 with the US attorney Tom Wilner, and We Stand With Shaker, established in 2014 with the activist Joanne MacInnes, which played a part in securing the release of Shaker Aamer, the last British resident in the prison.

Along the way, I have covered the stories of the 318 prisoners released from Guantánamo since June 2007 — 142 under George W. Bush and 176 under Barack Obama — in unprecedented depth. I have also covered the stories of the 30 prisoners charged in Guantánamo’s military commissions (although only eight men have been convicted, and only four of those convictions have so far survived the appeal process), and I also covered the men’s habeas corpus petitions in detail from 2008 to 2011, until they were disgracefully shut down by appeals court judges in Washington, D.C.

More recently, I have been assiduously covering the Periodic Review Boards, convened to assess the cases of 64 men who had not been approved for release or recommended for trials by an earlier review process, the Guantánamo Review Task Force. The first round of PRBs took place between November 2013 and September 2016, and, to date, have resulted in 33 men being approved for release (of whom 20 have been freed to date), while 23 others have had their ongoing imprisonment upheld. Eight decisions have yet to be taken.

As a result of my dedicated work over the last ten and a half years, this is the most comprehensive list ever published of the 779 prisoners who have been held at Guantánamo, providing details of the 708 prisoners who have been released (and the dates of their release), the nine men who have died, the one man transferred to the US mainland for a trial, and the 61 prisoners who are still held (including 20 men approved for release), as well as those designated for prosecution or ongoing imprisonment without charge or trial.

It is my hope, as it has been since I established this prisoner list seven years ago, that this project will provide an invaluable research tool for those seeking to understand how it came to pass that the government of the United States turned its back on domestic and international law, establishing torture as official US policy, and holding men without charge or trial neither as prisoners of war, protected by the Geneva Conventions, nor as criminal suspects to be put forward for trial in a federal court, but as “illegal enemy combatants.”

I also hope that it provides a compelling explanation of how that same government, under the leadership of George W. Bush, Dick Cheney and Donald Rumsfeld, established a prison in which the overwhelming majority of those held — at least 93 percent of the 779 men and boys imprisoned in total — were either completely innocent people, seized as a result of dubious intelligence or sold for bounty payments, or Taliban foot soldiers, recruited to fight an inter-Muslim civil war that began long before the terrorist attacks of September 11, 2001, and that had nothing to do with al-Qaeda, Osama bin Laden or international terrorism.

And finally, as it looks likely that Guantánamo will remain open when President Obama leaves office, I hope that it also provides useful information for those still seeking to close Guantánamo, and to bring to an end this bleak chapter in American history.

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 debut album ‘Love and War’ and EP ‘Fighting Injustice’ are available here to download or on CD via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for 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).

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, and The Complete Guantánamo Files, an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see 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.

It’s 100 Days Since the EU referendum; As a Legal Challenge Secures a Victory, It’s Clear the Tories Don’t Know What They’re Doing

Yesterday it was 100 days since a slim majority of the British people who could be bothered to vote in the EU referendum decided that they wanted us to leave the EU after 43 years’ membership, a generally ill-considered decision that I wrote about at length at the time — see my articles UK Votes to Leave the EU: A Triumph of Racism and Massively Counter-Productive Political Vandalism, Life in the UK After the EU Referendum: Waking Up Repeatedly at a Funeral That Never Ends, Not Giving Up: Photos from the March for Europe in London, Saturday July 2, 2016 and As the Leaderless UK Begins Sinking, MPs, Media and British Citizens Don’t Seem to Care.

As the Tories’ annual conference gets underway, Brexit hangs over it like a black cloud, however much our unelected Prime Minister Theresa May wishes that were not the case. The beneficiary of the collapse of David Cameron’s government after the referendum — and the discrediting of the Tories’ main cheerleaders for the Leave campaign, Boris Johnson and Michael Gove — May has done very little since coming to power, beyond expressing a largely unpopular desire to fill the nation with grammar schools.

On Brexit, as a generally unenthusiastic member of the Remain camp, she has tried to wash her hands of the referendum’s toxicity, appointing three stooges to preside over our departure from the EU — Boris Johnson brought back, embarrassingly, as foreign secretary, plus David Davis, allegedly in charge of negotiating our departure from the EU, and the crook Liam Fox, who resigned because of inappropriate behavior in 2011, when he was the defence secretary, after breaking the ministerial code by repeating allowing his friend Adam Werrity, a lobbyist, into meetings with military figures, diplomats and defence contractors. For more on the failures of Boris Johnson, David Davis and, particularly, Liam Fox, see this withering criticism by the Tories’ former business minister Anna Soubry.

Theresa May is now pledging to trigger Article 50, which formally announces our departure from the EU, next March. However, as the Observer states today, explaining why no progress is possible before next year, “several cases are currently before the courts arguing that the government does not have the power to invoke article 50 without parliament’s approval. The issue is likely to move swiftly to the supreme court, which will be under pressure to deliver a final judgment by Christmas.”

Legal challenges began in the wake of the EU referendum, beginning with a letter to the Prime Minister in early July, signed by 1,054 lawyers, who, after pointing that the outcome of the referendum was merely advisory, added, “The European Referendum Act does not make it legally binding. We believe that in order to trigger Article 50, there must first be primary legislation. It is of the utmost importance that the legislative process is informed by an objective understanding as to the benefits, costs and risks of triggering Article 50.”

Also relevant, following the referendum result, was the position taken by Geoffrey Robertson QC, who made clear where MPs’ responsibility lies. He pointed out that “‘[s]overeignty’ — a much misunderstood word in the campaign — resides in Britain with the ‘Queen in parliament’, that is with MPs alone who can make or break laws and peers who can block them. Before Brexit can be triggered, parliament must repeal the 1972 European Communities Act by which it voted to take us into the European Union — and MPs have every right, and indeed a duty if they think it best for Britain, to vote to stay.”

In my articles immediately after the referendum, I also made reference to an article by law professor and former Foreign Office advisor Philip Allott, who stated that the Brexit decision may be “unlawful,” and discussed another article explaining how solicitors from a number of law firms were “taking pre-emptive legal action against the government, following the EU referendum result, to try to ensure article 50 is not triggered without an act of parliament.”

A hearing, presided over by high court judge Mr. Justice Cranston, took place on July 19 (see legal Cheek’s commentary here), and the case is proceeding later this month. Last week it was back in the news again, as highlighted in the Guardian in an article by Owen Bowcott entitled, “UK government must disclose legal arguments on article 50 procedure.”

As the Guardian described it, Mr. Justice Cranston has obliged the government “to reveal secret legal arguments for refusing to let parliament decide when and how the UK should withdraw from the European Union,” whereby he has “swept aside restrictions on publishing official documents before the hearing on 13 October.”

In those documents, available here, lawyers for the government argue, as the Guardian put it, that “it is ‘constitutionally impermissible’ for parliament to be given the authority rather than the prime minister and dismiss any notion that the devolved nations – Scotland, Northern Ireland and Wales – will have any say in the process.”

After adding that the decision to trigger Article 50 “is a matter of high, if not the highest policy,” they explain that it is “a polycentric decision based upon a multitude of domestic and foreign policy and political concerns for which the expertise of ministers and their officials are particularly well-suited and the courts ill-suited.”

The government’s submission also claims that “[t]he lawfulness of the use of [royal] prerogative is not impacted by the devolution legislation. The conduct of foreign affairs is a reserved matter such that the devolved legislatures do not have competence over it.”

The government had previously “refused to allow its legal opponents to reveal,” before the case is heard, “its explanation of why it ought to be able to use royal prerogative powers to trigger article 50,” but in an order issued by Cranston last Tuesday, September 27, he told both parties, “Against the background of the principle of open justice, it is difficult to see a justification for restricting publication of documents which are generally available under [court] rules.”

As the Guardian proceeded to explain, “Cranston’s decision has also allowed the People’s Challenge, a crowdfunded group, to publish its full claim without any sections of it being redacted or withheld,” which argues that “only parliament can lawfully ‘decide’ to leave the EU for the purposes of article 50 [of the treaty]; and that the [government] may only ‘notify’ such a decision to the European council under article 50 once [it] has been properly authorised to do so by an act of parliament”.

After the outlines of both sides’ arguments were released, John Halford of Bindmans, which represents the People’s Challenge, said that the court’s order “allows a floodlight to be shone on the government’s secret reasons for believing it alone can bring about Brexit without any meaningful parliamentary scrutiny.”

He added, “Those who were unsettled by the government’s insistence on its defence being kept secret will now be surprised by the contents, including submissions that Brexit has nothing constitutionally to do with the Scottish and Northern Ireland devolved governments, that parliament ‘clearly understood’ it was surrendering any role it might have in Brexit by passing the EU Referendum Act, that it has no control over making and withdrawal from treaties and that individuals can have fundamental rights conferred by acts of parliament stripped away if and when the executive withdraws from the treaties on which they are based. These arguments will be tested in court next month, but now they can be debated by the public too.”

FT also covered the story in an article entitled, “Lawyers gear up to sue government over Brexit process,” which highlighted the lead claimant, Gina Miller, represented by the law firm Mishcon de Reya, who is “[t]he co-founder of an investment management company,” and “has been a vocal campaigner against hidden fees in the industry.” Other claimants include a Spanish hairdresser and expatriates living in France.

The FT also noted that the case “is being watched by constitutional experts aware that, unusually, the UK has a wholly uncodified constitution built up over many centuries, which compounds the complexities of triggering Article 50.”

Speaking to the newspaper from “her elegant Chelsea offices,” Gina Miller “said she had received online abuse for heading the challenge but was undaunted.” As she put it, “Someone sent me quite a nasty email saying, this is just frustrating Brexit by the back door. If anyone knows anything about me, I don’t do anything by the back door … I’m full on, straight up … and if I see something that I think is an injustice I will speak up about it. Our case is very, very simple … it’s about the process. How do we create legal certainty? Unfortunately, Article 50 is not well written, there is no process in it and everyone says it raises more questions than it answers. If we start the process illegally what will that do to the process?”

She added that the legal challenge is about “process not politics.”

After the referendum, Miller, whose father is a former attorney-general of Guyana, said that, reflecting on the result, “the word that kept resounding in my mind was the idea of sovereignty.” She told the FT of her belief that if Article 50 is not triggered with the proper care, “it unleashes a huge amount of legal uncertainty which could go on for years and could, in the worst-case scenario, mean that we forfeit our right to negotiate because they will say: you haven’t triggered it properly”.

She also warned against “a legal landscape where royal prerogative can overrule parliament and take away or diminish rights.”

Miller’s case will be joined by three others on October 13, against a government team led by Jeremy Wright QC, the Attorney General. One, as the FT explained, “has been brought by Spanish hairdresser Deir Dos Santos, who is represented by law firm Edwin Coe,” and Bindmans’ crowdfunded case is “on behalf of Grahame Pigney, a British citizen living in France whose fellow claimants include Paul Cartwright, 50, who is a Gibraltarian national, Christopher Formaggia, 49, who lives in Wales, and Tahmid Chowdhury, 21, a London student.”

The FT’s article continued:

Mr Pigney, 62, is semi-retired and has lived in a wine-growing region near Carcassonne in France for 19 years. When he moved there he says he appreciated at first hand the “openness and ease” of free movement that EU citizens enjoy, as he lived in France but commuted to work in London during the week.

He was one of the long-term expats who was unable to vote in the referendum on June 23 but says the result came as an “enormous shock”.

He said his court case is not about overturning the result but he believes the enforced removal of citizenship rights — of the EU — from the 65m people who live in the UK is unprecedented in a modern democracy and must involve a proper parliamentary process.

“It is for parliament to decide when, how and under what circumstances [citizenship rights] are taken away,” he said.

The FT also noted that, last week, the House of Lords Constitution Committee “concluded it would be ‘constitutionally inappropriate’ for the government to trigger Article 50 without consulting parliament,” but added that “many lawyers believe the legal challenge is unlikely to succeed because courts are reluctant to intervene in the exercise of power in foreign affairs, including treaties.”

The lawyers, the newspaper continued, “point to a doomed 1971 legal case against the government brought by Raymond Blackburn, who argued that Britain’s entry to the European Common Market would be unlawful because it involved surrender of the sovereignty of the Queen in parliament. In that case, Lord Denning, the lead judge, concluded, ‘The treaty-making power of this country rests not in the courts but in the crown; that is, Her Majesty acting upon the advice of her ministers.’”

I can only hope the lawyers are wrong, because nothing emanating from the government assures me that ministers have a clue how to secure our departure from the EU without it causing profound damage to our economy and our relationships with other countries in Europe.

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 debut album ‘Love and War’ and EP ‘Fighting Injustice’ are available here to download or on CD via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for 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).

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, and The Complete Guantánamo Files, an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see 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.

Guantánamo’s Military Commissions: More Chaos in the Cases of Abd Al-Rahim Al-Nashiri and Majid Khan

[image error] Please support my work! I’m currently trying to raise $2700 (£2000) to support my writing and campaigning on Guantánamo for the next three months.

At Guantánamo, as I have been reporting recently, the military commissions, a broken trial system ill-advisedly dragged out of historical retirement for prisoners seized in the “war on terror,’ have reconvened after a summer break — see my articles Not Fit for Purpose: The Ongoing Failure of Guantánamo’s Military Commissions and Chief Defense Counsel of Guantánamo’s Military Commissions Calls Them a “Poisoned Chalice,” a Betrayal of the Constitution and the Law. Also see my updated Full List of Prisoners Charged in the Military Commissions at Guantánamo.

That the commissions are a poor substitute for justice can readily be understood from the fact that only eight convictions have been secured, and four of those have subsequently been overturned by appeals court judges, and from the realization that the only ongoing cases are almost permanently deadlocked because, on the one hand, prosecutors seek to hide the fact that the men facing trials were tortured, while on the other those defending the men insist that fair trial cannot take place until the torture is openly discussed.

The failures of the commissions have also been made clear in a recent appeals court ruling in the case of Abd al-Rahim al-Nashiri, accused of involvement in the attack on the USS Cole in 2000, and in a hearing at Guantánamo for Majid Khan, who first agreed to a plea deal over four and a half years ago, in February 2012, but who has not yet been sentenced.

Al-Nashiri in the courts: a “lingering cloud of jurisdictional uncertainty”

Al-Nashiri, one of 14 “high-value detainees” held and tortured in CIA “black sites” and transferred to Guantánamo in September 2006, was referred for trial in September 2011 (after several inconclusive years in George W. Bush’s military commission  system), but pre-trial hearings have dragged on for five years with no sign of when his trial will actually take place. See my articles here, here, here, here and here, looking at pre-trial hearings in his case from 2011 to 2014. Since then, worryingly for the US and its credibility, the European Court of Human Rights condemned the US for implementing a program of extraordinary rendition and torture, and Poland for hosting a CIA “black site” from 2002 to 2003, and ordered the Polish government to pay €100,000 in damages to al-Nashiri.

Last year, al-Nashiri’s lawyers sought to have the entire Senate Intelligence Committee torture report issued, the Polish government asked the US not to execute him, and his case became mired in legal challenges. If you can navigate your way through complex legal issues, you can check out Steve Vladeck’s article from last June, “The D.C. Circuit’s Thoroughly Convincing Decision in al-Nashiri,” but I confess that I have been struggling to comprehend everything that has been going on, which leads me to suspect that, yet again, it reflects badly on the US’s credibility when it comes to the legitimacy of the military commissions.

What is certainly clear is that the legal challenges have been crawling through the courts for a year and a half, and that no definitive conclusion has been reached. On August 30, for example, as Human Rights First reported, a three-judge panel of the D.C Circuit Court — the appeals court in Washington, D.C. — denied al-Nashiri’s petition “to halt his trial by military commission,” although the court “failed to resolve the issue of whether or not the military commission, which can only try war crimes, has jurisdiction to prosecute al-Nashiri,” who “is accused of heading al Qaeda’s bombing of the USS Cole, which took place prior to 9/11 and therefore before the war with al Qaeda began.”

The article continued, “Declining to decide the important issue of whether al-Nashiri can even be tried by a military commission for the Cole bombing, the D.C. Circuit sent the case back to the military commission to be the judge of its own jurisdictional limits. As law professor Steve Vladeck noted, the D.C. Circuit’s failure to rule on the merits leads to a ‘lingering cloud of jurisdictional uncertainty.'”

At Guantánamo, where hearings resumed the week after the D.C. Circuit Court ruling, al-Nashiri’s defense attorney Richard Kammen stated that he had “decided to appeal the decision to the Supreme Court,” as Human Rights First noted, citing an article in the Miami Herald, and adding, “If the Supreme Court accepts the petition to review the case, this would be the first opportunity for the Supreme Court to rule upon the legal consequences of the Bush Administration’s torture program and the validity of the military commission system established by the 2009 Military Commissions Act.”

Elusive justice for Majid Khan

From this inconclusiveness to another: that of the sentencing of Majid Khan, the Pakistani “high-value detainee,” who, in a 2012 plea deal, pled guilty to conspiracy, material support, murder and spying — for delivering money to al-Qaeda operatives in Indonesia, which paid for the 2003 truck bombing of a Marriott hotel in Jakarta that killed 11 people and wounded at least 80 others, and plotting with the alleged 9/11 mastermind Khalid Sheikh Mohammed to conduct terrorist attacks in the United States.

Khan’s torture in CIA custody was revealed in shocking detail last June. In an exclusive article for Reuters, David Rohde explained how, “in 27 pages of interview notes his lawyers compiled over the [previous] seven years,” Khan “said interrogators poured ice water on his genitals, twice videotaped him naked and repeatedly touched his ‘private parts’ – none of which was described in the Senate report” (the executive summary of the Senate Intelligence Committee’s report on the CIA’s detention an interrogation program, which was released in December 2014). Khan also said that “[i]nterrogators, some of whom smelled of alcohol, also threatened to beat him with a hammer, baseball bats, sticks and leather belts.”

Khan is also one of the prisoners subjected to “rectal feeding” and “rectal hydration,” with the Senate report quoting a CIA cable which stated that “Khan’s ‘lunch tray,’ consisting of hummus, pasta with sauce, nuts, and raisins, was ‘pureed’ and rectally infused.” As Reuters explained, “The CIA maintains that rectal feedings were necessary after Khan went on a hunger strike and pulled out a feeding tube that had been inserted through his nose. Senate investigators said Khan was cooperative and did not remove the feeding tube.” reuters added, “Most medical experts say rectal feeding is of no therapeutic value. His lawyers [at the New York-based Center for Constitutional Rights] call it rape.”

The notes were cleared for release in May 2015 by the Pentagon’s “privilege review team,” which assesses whether any notes of exchanges between prisoners and their lawyers can be publicly released. Every word uttered in these exchanges is presumptively classified, and for the “high-value detainees” nothing was ever unclassified until after the Senate report was published. As Reuters described it, “Before the Senate report detailed the agency’s interrogation methods … CIA officials prohibited detainees and their lawyers from publicly describing interrogation sessions, deeming detainee’s memories of the experience classified.”

For his plea deal on February 29, 2012, in exchange for a guilty plea and an agreement to cooperate with prosecutors in the 9/11 trial, Khan was supposed to receive a 19-year sentence, although that, it was stated at the time, would not be delivered until four years after his trial.

And yet, at the end of February this year, Khan did not receive a sentence, because the trial in which he is supposed to testify — of Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks — is still stuck in a pre-trial phase that is moving with almost glacial slowness, as the defence teams seek to expose evidence of torture and prosecutors continue to try to hide it, and as the untested system reveals, every step of the way, that it is full of holes that are, to put it mildly, a profound obstacle to the passage of anything resembling justice

Two weeks ago, on September 14, Khan finally appeared again before a military commission, to discuss his sentencing, and also to withdraw his guilty plea for providing material support for terrorism, because, as a number of appeals court rulings from 2012 to 2014 have established, material support is not a war crime prosecutable by military commission, and had, in fact, been invented as a war crime by Congress.

In the hearing, presided over by Army Col. Tara Osborn, Khan “apologized … to the families of victims of his crimes, calling his actions as an al-Qaida operative ‘grotesque and pernicious,’” as the Baltimore Sun described it (he had studied in Baltimore County after coming to the US with his family in the 1990s).

He told Judge Osborn, “If it’s any consolation I would like to sincerely apologize to the family that I’ve either mentally or physically caused pain. I don’t get to come to court as often as possible … I’m using this opportunity to show some kind of compunction or regret.”

As the Baltimore Sun put it, “Khan also agreed to wait another three years before being sentenced while he continues to work with investigators,” and told Judge Osborn he was “comfortable with the delay.” As he put it, “I think it will probably help me.” One of his lawyers, Katya Jestin, noted that Appendix A of his pre-trial agreement allows for a sentence of 19 years (as opposed to the 25-40 years initially sought by the prosecution) if Khan provides “full and truthful cooperation amounting to substantial assistance.”

The Baltimore Sun also noted that federal appeals courts are still “weighing what jurisdiction the military commissions have over other charges” — in particular, the charge of conspiracy — adding that Khan “asked Osborn about the possibility that other charges would be dropped.”

“There’s also a charge of conspiracy,” he said. “If that gets dropped by the court of appeals … How’s that going to work? We’re going through the same process with the exact same method, right?”

As the newspaper described it, “Osborn said the question was relevant to the hearing. Then Khan answered it himself. ‘There’s a good chance that if that happens we’d do the same procedure,’ he said.”

The paper also noted that Khan “wore a dark suit, white shirt and pink tie to the proceeding,” and “has aged visibly since the last photos of him were released, in 2009. His hair is shorter, and a formerly trim mustache and beard have been shaved to stubble.” It was also noted that he “appeared to be in good spirits,” and “let out a quick chuckle after one set of questions he had for the judge were resolved.”

However, when he was given the chance to address the judge, he “adopted a serious tone,” delivering the apology noted above, and adding, “I made obviously some grotesque mistakes in my life. That’s why I end up here.” He concluded by saying that he hoped in future to help others avoid his fate — a sound idea that I hope is recognized by the authorities. “[M]y objective in future,” he said, “would be that I would really like to help the young — I call them the young jihadi wannabes.”

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 debut album ‘Love and War’ and EP ‘Fighting Injustice’ are available here to download or on CD via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for 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).

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, and The Complete Guantánamo Files, an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see 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.

Surprise as Tories Judge that Compulsory Purchases for the Regeneration of Southwark’s Aylesbury Estate Breach Leaseholders’ Human Rights

It was with some shock that, two weeks ago, I read the following headline in the Guardian: “Government blocks plan to force out London estate residents.”

The article was about the Aylesbury Estate in Walworth, south east London, one of the largest estates in western Europe, built between 1967 and 1977. Labour-held Southwark Council is in the process of destroying the estate, replacing it with new, privately-funded housing in which genuinely affordable flats will be almost non-existent, and ensuring that many of the estate’s residents are socially cleansed out of London — or at least have to move to less desirable boroughs than Southwark.

At the Aylesbury, the council is working with Notting Hill Housing, a former social homebuilder that has enthusiastically embraced the drive towards building private housing and offering unhelpful — and not genuinely affordable — part-rent, part-buy options for former social renters that has been prompted by government cuts.

Astonishingly, this is the same Southwark Council that engaged in social cleansing at Walworth’s other huge estate, the Heygate, for which they were soundly criticised. The estate was sold for a pittance to the Australian developers Lendlease, who are currently building a monstrous new private estate, Elephant Park, which features no genuinely affordable social housing. The Heygate’s tenants, meanwhile, have ended up scattered across south east London, Kent and beyond, as the graph below shows.

As the Guardian reported, however, an inspector for the department of communities and local government, tasked with investigating compulsory purchase orders required for the Aylesbury demolition to proceed, delivered a highly critical report that was backed by the government, and, specifically, the communities secretary, Sajid Javid, who accepted the inspector’s conclusions on September 16.

The government inspector found that Southwark Council’s “request for permission to issue people on the Aylesbury estate with compulsory purchase orders ‘adopted extremely low valuations,’” as a result of which “residents would ‘need to invest considerable personal resources’ if they were to stay in the area after they were moved out of their homes.”

This, if anything, was something of an understatement, although be honest I find myself bewildered that Southwark Council and Notting Hill Housing were unable to work out that offering, on average, £187,000 to leaseholders on the estate for their properties, while new replacement flats cost £459,000, was going to be perceived as grossly unfair.

And yet that is what has happened. Those renting their homes off the council have no protections, of course, and can be disposed of with impunity, as is happening across London, and up and down the country, as greedy developers and crooked or weak politicians seek to demolish as many council estates as they can, with the developers rebuilding them privately for eye-watering profits.

Leaseholders, however — those who bought their properties as a result of Margaret Thatcher’s sell-off of council housing in the 1980s — thought that they would enjoy the protections of the property-owning class, and were never told that, whenever politicians on the local or national level felt like it, they too would be kicked out of their homes.

Turning down Southwark Council’s plans, Sajid Javid backed the inspector’s findings that, “For elderly residents, who are of an age where they would probably be unable to obtain a mortgage to make up any shortfall and their future earning potential is likely to be limited, using their savings and other investments would severely limit their ability to choose how they spend their retirement.”

The inspector added, “In this regard, the compulsory purchase order would not only deprive them of their dwelling but also their financial security. If they chose not to pursue this option, they would inevitably need to leave the area and this would have implications for their family life, including the lives of those dependent on them.”

The Guardian added that the inspector has also concluded that “it was likely that people of black and ethnic minority backgrounds would be disproportionately affected,” and that all these issues “would lead to an unjustified breach of the leaseholders human rights, which the council could have avoided by seeking a different agreement with the leaseholders,” as the investigative journalist and researcher George Turner noted in a follow-up article in the Guardian.

In passing, I must note that any Tory minister defending human rights can only be regarded as being able to do until his own government succeeds in removing Britain’s human rights obligations, as Theresa May intends.

The Guardian’s initial report also noted that, “According to documents released by the council, the plan to demolish then rebuild the estate would leave about 30% fewer social rented homes and more than four times the number of private homes,” and research undertaken by the newspaper also suggested, as it overwhelming to be expected, that “those let at social rent levels after the rebuild would be more expensive than their current value.”

As well as being a blow to the greed of developers, the government’s intervention should also strengthen calls for properties to be upgraded wherever possible, rather than demolished.

As Eileen Short of the organisation Defend Council Housing explained, “Whether it’s motivated by cynical financial interests, competing interests of other landlords, or fear of the political consequences of attacks on tenants and housing, the government’s decision to block compulsory purchase on Aylesbury is good for council housing. Tenants and leaseholders have fought long and hard against privatisation, demolition and sell-off of the Aylesbury, pushed by governments over 20 years. Councils and ministers need to stop all demolition of good quality council homes and instead invest in existing and new homes to meet the growing and desperate housing need for secure and really affordable council housing.”

In his follow-up article, George Turner provided further details of Southwark Council’s miserliness, explaining that information about the amounts paid by Southwark Council for homes on the Aylesbury Estate were obtained by campaigners under the Freedom of Information Act, which reveal some “very low offers being made and accepted under the threat of compulsory purchase.”

As he explained:

In September 2012, for example, Southwark council paid one leaseholder on the Aylesbury estate £75,000 for a large, 47 sq m, one-bedroom flat. In 2014, the council paid £147,500 for a four-bedroom, 97 sq m maisonette. To put this in some kind of context, by January 2013, the average house price in London had hit £400,000.

On the neighbouring Heygate estate, Southwark council paid an average of £107,000 for a two-bedroom flat. Its purchases on that estate started in 2004, but as late as 2011 the council was still paying £115,000 for a two-bed flat there.

Turner also provided an example beyond Southwark “where councils have been forcing sales at low prices” — specifically, the West Hendon estate in Barnet, where, as the leaseholder Jasmin Parsons explained, “some leaseholders were offered just £90,000 for a one-bed flat and £130,000 for a two-bed maisonette when the council applied for the first in a series of compulsory purchase orders.” Turner added, “This offer was later increased after the leaseholders employed a surveyor to act on their behalf, but still fell far short of the amount required to buy an equivalent home.”

Turner went on to point out that, although “some leaseholders on council estates who bought their property directly from the council would have benefited from the right-to-buy discount” offered under Thatcher’s 1980s legislation, while “[o]thers, who had bought their property off another leaseholder, would not,” the key issue is that “right to buy offered a price which allowed them to move into or stay in their area,” while, in contrast, “[e]state regeneration has offered a price that compels them to move out.”

He then provided further explanations of the problem with compulsory purchases:

In theory, people facing compulsory purchase must be given the market value of their homes. But until now, local authorities, the government and the land tribunal have all backed an approach that has compensated leaseholders based on the average value of homes on the estate to be demolished, not the average value of homes in the wider area. That approach comes with some very obvious problems.

An estate facing demolition is generally the lowest-value housing in any given area, partly because councils will have let the buildings deteriorate, seeing little point in maintaining something that is going to be knocked down. And who wants to buy a home scheduled for demolition anyway?

Another issue facing these leaseholders is that once the council signals its intent to regenerate an estate, it kills the market in the area. That can happen years in advance of a compulsory purchase order being made. Instead, the “market value” becomes the price that leaseholders can get from a single purchaser, the council, which is also their landlord, and the body applying for compulsory purchase.

Given the approach adopted by councils, it is obvious that the amount offered to compensate leaseholders for the loss of their homes will rarely, if ever, be enough for them to afford a home in the area. Unless they can raise significantly more cash to buy back into the redeveloped and more expensive estate, or to buy more expensive housing in the local area, they will be compelled to leave. It is “pay to stay” for leaseholders.

To account for this, councils sometimes offer residents subject to a compulsory purchase order the chance to enter a shared ownership scheme. Having had their property taken from them by compulsion, leaseholders are given the “opportunity” to buy back part of a home on the new estate with the money they have been given, and the privilege to pay rent on the remaining share.

Leaving aside the obvious inequity, for many residents these offers are simply unrealistic. At West Hendon, 85-year-old Adelaide Adams was forced to sell her home for £175,000. An equivalent home on the “regenerated” estate would be £407,000, with service charges of over £2,000 a year. To her it was obvious that, after having spent 30 years on the estate, she was no longer welcome.

Turner called Sajid David’s decision to halt Southwark Council’s compulsory purchase “a change of heart,” although only time will tell if it was merely a blip. It is, however, certainly progress after the this same government “allowed Barnet to compulsory-purchase homes at West Hendon last year and Southwark to go ahead with compulsory purchase at the Heygate and on previous phases of the Aylesbury.”

In conclusion, Turner also pointed out that Sajid Javid’s decision “does not end the government’s support for the controversial policy of ‘estate regeneration,’ and will bring little comfort for those who have gone through the financial brutality it often creates, but it may give some protection to those facing eviction in the future.” He added that the ruling “establishes an important point of principle, which is that while compulsory purchase can force people out of their homes, it cannot force them out of their communities.”

However, as he also noted, the government still wants to bring forward plans to regenerate 100 estates across the UK, and campaigners — and anyone concerned with the importance of providing large-scale and genuinely affordable social housing — needs to be prepared to fight these plans, first announced by David Cameron in January, when, in an article in the Sunday Times, he wrote patronisingly about “sink estates,” making shameful generalisations about life on council estates, and indulging in typical Tory suggestions that poverty is somehow linked to moral turpitude and social dysfunction, rather than being caused by wider economic trends.

“Within these so-called sink estates, behind front doors, families build warm and welcoming homes,” Cameron wrote. “But step outside in the worst estates and you’re confronted by concrete slabs dropped from on high, brutal high-rise towers and dark alleyways that are a gift to criminals and drug dealers. Decades of neglect have led to gangs and antisocial behaviour. Poverty has become entrenched, because those who could afford to move have understandably done so.”

In London, the election of Sadiq Khan as Mayor promises a greater emphasis on the importance of social housing, but Theresa May’s new, post-EU referendum government has been quiet on housing so far, and we will have to wait and see what is proposed, although I would be surprised if the greed and class disdain that fuelled David Cameron’s diatribe against “sink estates” will disappear.

Also see below for a letter by a number of housing action groups to the Evening Standard, which ran an article on September 20 entitled, “Aylesbury estate residents ‘elated’ after the Government throws out bid to remove them.” The letter, in response, was published on the extraordinary Southwark Notes website, which has been covering the Heygate story and the wider struggle for social housing in Southwark for many years.

Letter To Evening Standard re: Aylesbury CPO rejection

In Monday’s article (regarding the secretary of state allowing Aylesbury Estate residents the right to remain in their homes in the face of Southwark Council’s and Notting Hill Housing Trust’s socially unjust ‘regeneration’ scheme) important points were missed. The Secretary of State for Communities and Local Government Sajid Javid’s rejection of the compulsory purchase order should shame Southwark. Aylesbury Estate has a large Black and Minority Ethnic population. Javid’s report was clear that the redevelopment scheme will affect these most vulnerable local residents and noted Southwark’s failure to uphold its public sector Equality Duty in this respect.

The article also gave the impression that the leaseholders involved in this case are the last ones left on the estate. In fact, this recent Public Inquiry only relates to the “First Development Site”, a small part of the 60 acre estate. There are still hundreds of residents in the rest of the Aylesbury, watching this case with great interest because their homes are due to be affected by Phases 2, 3 and 4. The scheme if it goes ahead will result in a minimum net loss of 800 affordable council homes further impacting available housing for locals on the housing waiting list. After Heygate Estate’s demolition and replacement by mostly private sale homes, residents are fearful of Aylesbury becoming another Heygate. Campaign groups in Southwark are calling for a moratorium on estate regeneration schemes that are premised on demolition and decanting of residents.

Finally, the statement by Southwark’s head of regeneration states that the regeneration is “supported by the vast majority of residents”. This is not true – the only ballot of residents to date (in 2001) rejected redevelopment with a 73% majority on a 76% turnout. Southwark Council and Notting Hill Housing Trust must now rethink this entire regeneration model and listen to the residents’ needs and desires.

Aylesbury Tenants and Residents First

35 Percent Campaign

Elephant Amenity Network

Fight For the Aylesbury

People’s Republic of Southwark

Southwark Notes

Saving Southwark

Southwark Green Party

Southwark Defend Council Housing

Note: For further information about the Aylesbury Estate, see “The fall and rise of the council estate” by Andy Beckett in the Guardian in July, and also see “It’s hard going for people left behind on ‘sink estates’” by Hannah Layland (from the Guardian in February) about a family trapped in prison-like conditions on one of the Aylesbury’s blocks scheduled for demolition, which was the disproportionate response of the council and the developers to squatters taking over an empty block in 2015. For West Hendon, see the Guardian articles here and here. For the Heygate, above and beyond Southwark Notes, see this article in the New Statesman from 2013, and this from the Guardian at the same time.

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 debut album ‘Love and War’ and EP ‘Fighting Injustice’ are available here to download or on CD via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for 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).

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, and The Complete Guantánamo Files, an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see 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.

Chief Defense Counsel of Guantánamo’s Military Commissions Calls Them a “Poisoned Chalice,” a Betrayal of the Constitution and the Law

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.

Here at “Close Guantánamo,” as we continue to monitor the situation at Guantánamo in the dying days of the Obama presidency, we remain concerned for all the categories of men held. Of the last 61 men in the prison the statistics are as follows:

20 men have been approved for release.
23 have had their ongoing imprisonment approved by Periodic Review Boards.
Eight are awaiting decisions by Periodic Review Boards.
Ten are facing — or have faced — trials.

Of the men approved for release, seven have been languishing at Guantánamo since the high-level, inter-agency Guantánamo Review Task Force made decisions about what should happen to the prisoners in 2009, while the other 13 have been approved for release in the last two and a half years by the latest review process, the Periodic Review Boards (for further information, see our definitive Periodic Review Board list). All of these men should be released as soon as possible.

Of the men approved for ongoing imprisonment by the Periodic Review Boards, we are reassured that further reviews have been built into the system — administrative fie reviews every six months, and full reviews every three years (although they have taken place more frequently in practice), in which the prisoners can once more speak by video-conference with the inter-agency officials deciding their fates as they did during their initial reviews. We do, however, believe that, fundamentally, men should not be held indefinitely without charge or trial and eventually be granted parole type reviews (which is what the PRBs are). If the men in question were engaged in military activity, then they should be held according to the Geneva Conventions, and if they were allegedly involved in any kind of terrorist activity, then they should be put on trial.

Of the men facing trials, the problem — largely overlooked in the mainstream media — is that the trial system at Guantánamo, the military commissions, is thoroughly dysfunctional, and incapable of delivering justice, and we believe the commissions should be scrapped, and men who can be prosecuted moved to the mainland for federal court trials.

The commissions were dragged from the history books by Dick Cheney and his closest legal adviser, David Addington, in November 2001, with the intention of providing swift trials — and, subsequently, executions — for men seized in the “war on terror,” in which information derived through the use of torture could be included, and in their first incarnation they limped on, without getting anywhere near trials, until June 2006, when the Supreme Court ruled that they violated the US Code of Military Justice and Geneva Conventions.

Nevertheless, Congress also immediately resuscitated them, and, after a break when he took office in 2009, President Obama again revived them in 2009, although as experts noted (see here and here) this was unwise, because the war crimes in question being tried in the commissions — and, particularly, the most general charge, of providing material support for terrorism — had been invented as war crimes by Congress and would not survive on appeal.

That was indeed what happened, and in 2012 and 2013 two rulings in the appeals court in Washington, D.C. demolished the credibility of the commissions, dismissing two of the handful of convictions secured in the ailing system, and ensuring that most of the men recommended for prosecution by the task force (36 men in total) would not be prosecuted, but would, instead, be made eligible for Periodic Review Boards.

Of the ten men left in the commissions system, just seven are involved in pre-trial hearings — five men accused of involvement in the 9/11 attacks, and two others — while two have accepted plea deals, and one was convicted under George W. Bush — although he is also one of the men whose convictions have collapsed under subsequently judicial scrutiny.

Unfortunately, for anyone in search of justice, the commissions are caught in a seemingly endless deadlock, in which, on the one hand, the defense teams insist, as they should, that information about the men’s torture in CIA “black sites” must be revealed, while, on the other, prosecutors are doing all they can to continue hiding evidence of torture — and all this, of course, continues even though, in December 2014, the executive summary of the Senate Intelligence Committee’s report into the CIA’s torture program was published, which confirmed the extent of the men’s torture, its brutality and its uselessness, in what should have been a definitively authoritative manner.

Nevertheless, the commissions limp on, even though trials are not envisaged as taking place before 2020 at the earliest.

Moreover, critics continue to assail the commissions’ legitimacy from within, as has happened throughout their history. Seven prosecutors and one chief prosecutor have all resigned since the commissions were first revived — including Stuart Couch, Darrel Vandeveld and the former chief prosecutor Morris Davis — while recently the latest Chief Defense Counsel, Brig. Gen. John G. Baker, delivered a speech to a national security conference at Georgetown University, which was a withering putdown of the failures of the system — despite the best efforts of the defense teams — to deliver anything resembling justice.

I’m posting the text of Brig. Gen. Baker’s speech below, and I do hope you have time to read it, and to share it if you find it useful. In a key passage, he noted that, “Instead of being a beacon for the rule of law, the Guantánamo Bay military commissions have been characterized by delay, government misconduct and incompetence, and even more delay.” He also spoke about the difficulties involved in getting to Guantánamo and communicating with the prisoners, and also talked about how they “have a tragic history of being subjected to brutal torture at the hands of the U.S. Government,” and how “[t]he impact of past torture continues to permeate every aspect of the attorney-client relationship,” adding that “[m]any detainees continue to lack the necessary medical care appropriate for lengthy periods of abuse.”

Brig. Gen. Baker also ran though a shameful list of the ways in which, as he put it, “the U.S. Government has repeatedly taken steps that frustrate meaningful attorney-client relationships, both inside and outside of the courtroom,” and spoke at length about how he uses the acronym “DID” to highlight the biggest problems facing the defence teams — problems with the first “D” for discovery, “I” for intrusion, and the second “D” for an array of problems associated with death penalty cases.

In a key passage towards the end of his speech, Brig. Gen. Baker gave the following relying cry for everyone who seeks the closure of Guantánamo and the delivery of justice to the men still held, which I thoroughly endorse: “Despite its notorious reputation, Guantánamo, and particularly the military commissions, have largely disappeared from the media landscape as a topic. This should change. The topic of human rights and America’s commitment to its own Constitution should be on the front-burner of public debate. Tell your colleagues about the failing military commissions. Tell them how the United States created a substandard system of justice, but only for non-citizens. Tell them about the government’s unconscionable discovery practices. Tell your friends about how the government is trying to conceal evidence of torture or how they are destroying exculpatory evidence.”

Keynote Speech of Brigadier General John G. Baker, Chief Defense Counsel of the Military Commissions Defense Organization, at Georgetown University’s NATSECDEF conference on September 14, 2016

Good afternoon. I’d like to thank Georgetown University for hosting this event and the NATSECDEF Conference for inviting me to share my thoughts on the current state of the military commissions. I am especially thankful to the personnel at Georgetown and my own organization who made it possible for me to speak to you via video-teleconference. I apologize for not being there in person, but I’m delighted to speak to you live from Camp Justice in Guantánamo Bay, Cuba, where I am here to observe post-trial proceedings in the military commission for Majid Khan.

I head an organization known as the Military Commissions Defense Organization, or the MCDO as we call it. The MCDO is an extremely diverse organization, employing approximately 200 personnel drawn from all four military branches, civilian government employees, contractors, and pro bono attorneys. Our mission statement explains that the MCDO “provides ethical, zealous, independent, client-based defense services under the Military Commissions Act in order to defend the rule of law and maintain public confidence in the nation’s commitment to equal justice under the law.” Our work challenging the current Commissions process, which is flawed in both design and execution, is vital to ensuring current and future law of war prosecutions are seen as credible by the American public and the international community.

Before I begin, I would like to take a moment to express how proud I am to lead this organization and to recognize the phenomenal work done by the people I lead. I have been the Chief Defense Counsel for the Military Commissions Defense Organization for a little over a year, and daily I am reminded of the significant sacrifices made by our members — both military and civilian. Our attorneys, paralegals, investigators, security officers, analysts, interpreters, information technology experts, and operations and administrative support personnel, all work long hours, spend weeks at a time away from their families, and deal with daily frustrations and indignities, all to further the respect of human rights and to uphold the rule of law in our country. They do this important work because most of them have taken an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” That is exactly what they do every day. I am proud of each and every one of them and every American and member of the international community should be proud of them as well.

I was asked to talk today about the current state of the military commissions at Guantánamo Bay. Put simply, the military commissions in their current state are a farce or as Rick Kammen — lead counsel for Mr. al-Nashiri — stated on the record last week, these Commissions are “hopelessly flawed.” Instead of being a beacon for the rule of law, the Guantánamo Bay military commissions have been characterized by delay, government misconduct and incompetence, and even more delay. Only two cases that were not guilty pleas have ever been brought to trial. The guilty verdict in one of those two cases was overturned on appeal in its entirety. The other had two of the three adjudged convictions overturned, and the appeal is still pending on the remaining charge. Six other cases have gone to trial through guilty pleas. Two had their pleas overturned post-trial due to legal errors. One still has an appeal still pending, and two are still awaiting sentencing — one sentencing hearing is supposed to be held in 2017 and the other won’t be held until 2019. This is not a record of which the U.S. Government should be proud.

In addition to the two cases that are awaiting sentencing, my personnel currently defend three cases which are in the pretrial phase. One of those cases, which has five defendants, alleges conspiracy to attack the World Trade Center and Pentagon on September 11, 2001. Prosecutors are seeking the death penalty for all five. Another case, also a death penalty case, alleges the accused conspired to attack the American warship USS Cole in [the] Gulf of Aden in 2000. The third case alleges the accused to be a senior member of al Qaeda who attacked U.S. personnel in Afghanistan over a five year period.

The September 11 prosecution is by any objective measure the largest criminal case in American history. The charge sheet in the case alone alleges almost 3000 victims and criminal acts in 14 different countries. According to the FBI’s website, at least 30 of its foreign offices were involved in the investigation using over 4,000 special agents and 3,000 professional employees responding to more than 500,000 investigative leads, conducting more than 167,000 interviews and collecting more than 150,000 pieces of evidence. The case of the accused USS Cole bomber is only marginally less complicated. Same for the prosecution of Nashwan al-Tamir [Abd al Hadi al Iraqi], the accused al Qaeda leader in Afghanistan.

The legal [issues] involved in these cases are complex, cutting edge, and often a case of first impression for the counsel and the military judge. In addition to their size and scope, almost nothing about defending these cases is normal, however you define normal. Our clients are imprisoned on a remote military base on a country historically hostile to the United States. The logistics of the commissions make establishing effective and meaningful attorney-client communications far more difficult than it should be. Telephone and electronic communications with our clients is not allowed — so the defense teams are required to fly down to GTMO regularly — often to resolve a routine matter that we would normally take care of in an hour or so here in the States. Because flights are not frequent, even the most routine client visit takes an entire week to accomplish.

Just getting to the clients is only the first part of the struggle. In my opinion, the biggest challenge my defense teams face is forming and maintaining an effective attorney-client relationship. In addition to language, cultural, and religious barriers, MCDO clients — with few exceptions — have a tragic history of being subjected to brutal torture at the hands of the U.S. Government.

The impact of past torture continues to permeate every aspect of the attorney-client relationship. Many detainees continue to lack the necessary medical care appropriate for lengthy periods of abuse. While defense teams should be devoting their efforts to case building and research, they unfortunately spend a disproportionate amount of time on “care and feeding” of the client. Under these difficult conditions — not to mention the obvious inherent cultural and language barriers — our defense teams have done a remarkable job building rapport and gaining clients’ trust.

In the meantime, despite the best efforts of our attorneys to win the trust of their clients, the U.S. Government has repeatedly taken steps that frustrate meaningful attorney-client relationships, both inside and outside of the courtroom.

In the space of three months beginning in January 2013, the 9/11 defense teams discovered that a third party had the ability to shut down live courtroom proceedings without the knowledge or assent of the judge; that a government entity had the ability to listen to courtroom conversations through the microphones placed on defense tables; and what had previously been believed to be smoke detectors on the ceiling of attorney-client meeting rooms were, in reality, listening devices. During a hearing addressing these issues, the cells of all of the accused were searched and privileged attorney-client mail was seized. In 2014, it was learned that the FBI had convinced a 9/11 defense team member to become a confidential informant as part of a criminal investigation of one of the other team members. During a February 2015 hearing, one of the 9/11 accused announced that he recognized the court interpreter sitting at his defense table from one of the black sites where he was interrogated and tortured.  These events led to well over a year’s delay in the proceedings while hearings were cancelled and court-ordered investigations were conducted. Most recently, the government has been baiting one of the accused to fire his defense team and go pro se. To say the very least, military commissions will have no legitimacy as a system of criminal justice until this kind of government interference ends.

So how is that it is September 2016 and we are nowhere near trial? In many respects, what happened today in court is symbolic of how badly the commissions are going. Majid Khan pled guilty in 2012 and, as incentive to cooperate with the prosecution, agreed to delay his sentencing hearing until this year. Today, they pushed that sentencing hearing back for three more years.

Members of the public, including the victim family members, have often asked why this case is taking so long to get to trial. Despite occasional assertions to the contrary from members of the prosecution, the delays in these cases are almost all caused by decisions made by government actors. To help explain this delay, I’ve come up with acronym DID — D-I-D — for the three primary pieces for the delay.

The first D stands for Discovery. The delay is caused by the government’s discovery practices, which are unlike any undertaken by any prosecutor in any American court system. Between the 9/11 and Nashiri cases, the government has turned over 600,000 pages of unclassified discovery. They have also produced 183,000 gigabytes of electronic discovery. James Connell (lead counsel for Ammar al Baluchi) tells me that this is 37 times all the data contained in Wikipedia. So with production of this much discovery, you’d think that there would be no discovery issues, but holy smokes, are there discovery issues in these cases. Here we are 15 years after 9/11 — or more generously, 4 years after the accused were arraigned — and the prosecution has not completed its discovery obligations. The redactions and deletions in what they have turned over will lead to what I predict is years of additional litigation.

Most of the evidence in military commissions cases relating to the clients’ torture is classified at the highest levels. Issues relating to classification have consistently impeded the defense team’s abilities to do their jobs. New hires without security clearances cannot meet the client or participate in important case preparation until they have undergone a lengthy background investigation process that literally takes a year or more to complete.

Even after obtaining necessary clearances, defense counsel operate in the dark due to a lack of adequate classification guidance. Defense counsel are legally bound to handle classified information appropriately, yet, for seven years — since charges were originally brought in the 9/11 case — the government has refused to provide the formal classification guidance required by Executive Order. The limited guidance that has been received has been inadequate, resulting in “spills” of classified information that cause significant delay, including the temporary seizure of computers, while security personnel conduct investigations. Lack of classification guidance also has a chilling effect on defense teams, who cannot afford to put their security clearances at risk.

More disturbingly, the classified evidence rules have been interpreted to allow the prosecution to secretly obtain permission from the military judge to secretly destroy critical exculpatory evidence. Military commissions defense attorneys will continue to fight to prevent prosecutors from withholding critical evidence, or worse, destroying evidence helpful to the defense in the name of “national security.”

So, where are we on discovery?

Last Friday, BG Martins explained the state of play of the government’s discovery practice; he has “tempered optimism” that it will be completed on 30 Sept. BG Martins has had a team of people working “seven days a week” since June 2014 to comply with the judge’s discovery order. They have reviewed millions of pages of documents — to include the full SSCI report. 18 months, 7 days a week, millions of pages — and what the defense is supposed to get at the end of all that work is a couple of thousands of pages.

When will the defense get those couple of thousand pages? Who knows. The military judge needs to review most of this to determine if the government has provided an adequate substitute or summary for the classified evidence. We know from the judge on the 9/11 cases that he has determined in almost all instances that the government has not provided an adequate summary and has sent the discovery he has reviewed back for more work. When our defense teams finally do get this evidence from the judge, there is going to be significant litigation to follow regarding the government’s discovery practices.

So back to the acronym DID — I just discussed the first D — Discovery.

The I in DID stands for intrusion. I previously explained how the Government has consistently intruded into the defense attorneys’ abilities to do their jobs. Many of the case delays can be traced back to governmental intrusions into the defense function — from infiltrating a defense team to attempting to bait an accused to fire all his attorneys.

Finally — the last D — the death penalty, which causes its own delay. Death penalty cases have a different standard for criminal defense attorneys to meet to ensure their clients have effective assistance of counsel. Accused facing the death penalty are required to be represented by counsel learned in the field of capital litigation with significant experience trying death penalty cases. Each accused in the military commissions currently has one such attorney, but cases of this size, scope, and complexity require more than that. My attempts to hire additional death penalty counsel, investigators, intel analysts, and other critical resources have been continuously blocked by the Convening Authority, who refuses through his action — and at times, inaction — to provide sufficient personnel and funding for a constitutionally adequate defense. This has remained the case even though Congress specifically recognized the problem and emphasized the need for adequate defense resourcing when they passed the Military Commissions Act. Predictably, burnout has been a significant problem as defense teams have done more with less as their requests for critical resources often are ignored. If the defense teams continue to be under-resourced, the result will be more delays and, down the line, more challenges to the fundamental fairness of the proceedings.

As you listen to this today, you may wonder what you can do. Despite its notorious reputation, Guantánamo, and particularly the military commissions, have largely disappeared from the media landscape as a topic. This should change. The topic of human rights and America’s commitment to its own Constitution should be on the front-burner of public debate. Tell your colleagues about the failing military commissions. Tell them how the United States created a substandard system of justice, but only for non-citizens. Tell them about the government’s unconscionable discovery practices. Tell your friends about how the government is trying to conceal evidence of torture or how they are destroying exculpatory evidence. Our legal defense teams are doing great work bringing some of these issues to light, but they need help.

After the passage of the Military Commissions Act, a former Chief Prosecutor for Military Commissions stated his goal was for Guantánamo military commissions to be remembered by future generations in the same favorable light the Nuremberg Trials are held by members of this Generation. The U.S. Government unfortunately has failed and continues to fail this test. Future generations will look back at these proceedings as a missed opportunity for America to show the world its commitment to justice, human rights, and the rule of law.

If the U.S. Government still intends to use Nuremberg as its guide, they would be wise to listen to the chief prosecutor at Nuremberg, Justice Robert Jackson, who recognized the danger of powerful nations unilaterally dispensing justice onto a purported enemy. Justice Jackson said in his opening argument at Nuremberg: “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.”

Instead of respecting the Constitution and ensuring equal protection under the law, the U.S. Government is choosing to drink from a poisoned chalice.

If our government wants the most important criminal cases in American history to be tried by military commission, it is essential that the proceedings live up to the highest standards of American justice. They have not. Instead, they leave behind a legacy of uncertainty, government misconduct, and torture. This is a gross injustice being done to the individuals charged in the system, but it is also more than that — it is, as Justice Jackson recognized, a matter of national security and integrity as well.

I am proud of the oath I have taken to “support and defend the Constitution of the United States against all enemies, foreign and domestic,” and so are the other members of this organization. Our nation may once again decide to use military commissions in a future armed conflict. The efforts of our defense teams to change the “poisoned chalice” of Guantánamo into legitimate and credible proceedings lays the groundwork for a system that fully comports with the rule of law and has the respect of the international community. In defending the rule of law by fighting for their clients, MCDO attorneys are defending the rule of law on behalf of us all. I could not be more grateful and proud to lead this organization.

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 debut album ‘Love and War’ and EP ‘Fighting Injustice’ are available here to download or on CD via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for 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).

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