NGO calls on ECtHR to intervene in military commissions case of Al Nashiri

The Open Society Justice Initiative is calling on the European Court of Human Rights to intervene urgently in the first death penalty case to be tried by US military commissions at Guantánamo Bay, Cuba, involving Abd al-Rahim al-Nashiri.

In an application to the Court, OSI argues that Poland violated al-Nashiri’s rights under articles 2, 3 and 6 of the ECHR by enabling al-Nashiri’s incommunicado detention and torture on Polish soil and his transfer out of the country, and that the President of the Court should exercise his power to grant interim relief under Rule 39 by indicating to the Government of Poland that it should immediately use all available means at its disposal to ensure that Al Nashiri is not subjected to the death penalty.

These means include but are not limited to: (i) making written submissions before 30 June 2011 to Bruce MacDonald, the Convening Authority for Military Commissions, to ensure that he does not approve the death penalty for Mr. al Nashiri‘s case; (ii) obtaining diplomatic assurances from the United States Government that it will not subject Mr. al Nashiri to the death penalty; (iii) taking all possible steps to establish contact with Mr. al Nashiri in Guantánamo Bay, including by sending delegates to meet with him to monitor his treatment and ensure that the status quo is preserved in his case; and (iv) retaining and bearing the costs of lawyers authorised and admitted to practice in relevant jurisdictions in order to take all necessary action to protect Mr. al Nashiri‘s rights while in U.S. custody including in military, criminal or other proceedings involving his case.

Bruce MacDonald, the Convening Authority for U.S. military commissions, has said he will consider written submissions against the death penalty until June 30, 2011, following which he will make a decision on whether to approve capital charges and refer them for trial to a military commission.

On 20 April 2011, United States military commissions prosecutors brought charges against Mr. al Nashiri relating to his alleged role in the attack on the USS Cole in 2000 and the attack on the French civilian oil tanker MV Limburg in the Gulf of Aden in 2002.

In which detention schemes do the 172 remaining Guantanamo Bay detainees fit?

After President Obama signed his Executive Order on Periodic Review, I didn’t find immediately a handy breakdown of the number of detainees which fitted into the new detention schemes introduced by this order. These numbers are derived from a public presentation of the US Department of State I recently attended:

  • 59 detainees are currently approved for transfer (including 27 Yemeni’s)
  • 30 Yemeni detainees currently fit into the ‘conditional detention’ scheme. These detainees are eligible for transfer if one of the following conditions is satisfied: (1) the security situation improves in Yemen; (2) an appropriate rehabilitation program becomes available; or (3) an appropriate third-country resettlement option becomes available
  • 36 detainees will be prosecuted in either article III (civilian) courts or the military commissions. At least 6out of 36 are currently scheduled to be tried at the Military Commissions, including Khalid Sheikh Mohammed, Walid Bin Attash, Ramzi Bin Al-Shibh, Ali Abdul Aziz Ali, Mustafa Al-Hawsaw and Abd al-Rahim al-Nashiri.
  • 47 detainees currently fit into the ‘continued law of war detention’ scheme. This essentialy is what usually is referred to in the press as the ‘indefinite detention scheme’. According to the executive order these are detentions which are authorized by Congress under the AUMF “as informed by the laws of war”.

Since Obama entered the White House 67 detainees were transferred to 24 different countries.

AP offers details about prolonged confinement about detainees at classified detention sites in Afghanistan

The Associated Press reported yesterday on the existence of “classified detention sites” being run by the Joint Special Operations Command in Afghanistan, where detainees are held for “weeks” in secret for the purposes of interrogation. Daphne Eviatar, a senior associate at Human Rights First, recently interviewed several former detainees who had been held at these facilities. Eviatar said her monitoring group does not believe the JSOC facility is using the full range of Bush-era interrogation techniques, but she said there’s “a disturbing pattern of using fear and humiliation to soften up the suspects before interrogation”. Detainees are said to be “forced to strip naked, and kept in solitary confinement in windowless, often cold cells with lights on 24 hours a day.”

Despite the sensational headline this is essentially old news; the government has never never denied the existence of these temporary holding facilities where they hold detainees for up to 14 days before releasing them or transferring them to the Parwan Detention facility. And the treatment of the detainees is in accordance with the Army Field Manual, including its notorious ‘Appendix M’.

The ICRC has earlier said that since August 2009 they are being notified – as a matter of policy – of detained people in Afghanistan by the US authorities within 14 days of their arrest. The UN has commented upon this practice, saying that there is ‘no legal justification for this two-week period of secret detention.’ Under international law the US can only hold persons in unacknowledged detention for the purposes of interrogation for one week.

According to article 70 of the Third Geneva Convention, prisoners of war are to be documented, and their whereabouts and health conditions made available to family members and to the country of origin of the prisoner within one week. Article 106 of the Fourth Geneva Convention (governing the treatment of civilians) establishes virtually identical procedures for the documentation and disclosure of information concerning civilian detainees.

The AP article now suggests that detainees might be held in these temporary detention sites for a period of up to 9 weeks. It is unclear at what time these detainees have access to the ICRC.

After the first two weeks, the first extension is for three weeks, for reasons including “producing good tactical intel” to “too sick to move,” according to a U.S. official familiar with the procedure. The next possible extension is for an additional month, adding up to a total of roughly nine weeks in temporary detention before battlefield interrogators have to appeal to the executive, either the defense secretary or the president himself, for another extension. The military has never pushed for that for any detainee, according to a
former senior intelligence official, speaking on condition of anonymity
to discuss classified matters.

Testimony from Bagram’s black jail

As reported on the Afghanistan Analysts Network:

After our arrest we were first taken to Tor Jail, or the Black Jail. It was terrible. They didn’t treat us like humans at all. They didn’t allow us to sleep. There was nothing to cover ourselves with. They insulted the Quran. Whenever we were taken to the bathroom, they left the door open. We never knew when it was time to pray or which direction we should face. We never saw sunlight. We were treated rudely during interrogation. Some people were also beaten, but that didn’t happen to me.

After 33 days in the Black Jail I was transferred to the big jail. Here we were visited by ICRC, which was good even though they had no authority. They brought letters, but they didn’t tell the press about us or about the circumstances we were in. The Human Rights Commission (AIHRC) didn’t come to the prison, maybe they were not allowed in. About a month before my release they came, but they were so young. What could they do?

Pakistani government and ICRC at odds over access to detainees and applicablity of Geneva Conventions

Dawn reports that the Pakistani government has refused to allow the ICRC to visit jails in Khyber Paktunkhwa and Balochistan in order to visit hundreds of prisoners under charges of militancy and insurgency in Khyber and FATA. According to the ICRC and armed conflict exists in Pakistan’s north-West area, while Pakistan denies this and says that an ongoing ‘operation’ is taking place against ‘common criminals or anti-social elements’. Hence, the Pakistani government argues that article 3 of the Geneva Conventions is not applicable to the situation there, and that ICRC cannot visit prisons and detention centers in the area. The ICRC had access to prisons in Balochistan in July 2008, and in Khyber in October 2009. According to the Pakistani Human RIghts Commission more than 2600 detainees were arrested in Makakand division alone in 2009. Human Rights Groups.

MI5 short of surveillance officers says minister

The BBC reports that the UK government has revealed MI5 does not have enough spies to allow it to abolish control orders immediately. Security Minister Baroness Pauline Neville-Jones said the  Security Service needed to recruit and train more surveillance officers.

Ministers want to introduce a lighter touch regime, which depends on more surveillance, by the end of the year. Parliament approved control orders until New Year’s Eve, with ministers saying the replacement will be ready.That revised system, known as Terrorism Prevention and Investigation Measures (TPIMs) includes many of the aspects of control  orders but allows greater use of phones and freedom of movement.

But security chiefs want the new freedoms to be balanced by greater secret surveillance of the suspects.
The admission that the Security Service does not yet have enough surveillance officers came on Tuesday evening in a Parliamentary debate on renewing control orders until the end of the year.
The government needs to legislate to introduce TPIMs – but Baroness Neville-Jones told peers that even if the “looser regime” were in place, there was not yet enough manpower “to give the necessary security to the public”.

CCR sues ‘Guantanamo North’ detention facilities in Aref et al v. Holder

NPR has a story about the “Communications Management Units” in Terre Haute, Ind., and Marion, Ill. The special detention unit in Terre Haute contains 50 cells housing some of the people the U.S. describes as the “country’s biggest security threats”, including John Walker Lindh. The units’ population has included men convicted in well-known post-Sept. 11 cases, as well as defendants from the 1993 World Trade Center bombing, the 1999 “millennium” plot to bomb the Los Angeles airport, and hijacking cases in 1976, 1985 and 1996. The Bureau of Prisons says a total of 71 men now live in the units.

Guards and cameras watch the CMU inmates’ every move. Every word they speak is picked up by a counterterrorism team that eavesdrops from West Virginia. Restrictions on visiting time and phone calls in the special units are tougher than in most maximum security prisons. Prisoners in the CMU, alone out of all general population prisoners within the federal system, are categorically banned from any physical contact with visiting friends and family, including babies, infants, and minor children. To further their social isolation, the BOP has placed severe restrictions on their access to phone calls and work and educational opportunities.

According to CCR:

“Adding to the suspect nature of these units, upwards of two-thirds of the prisoners confined there are Muslim – a figure that over-represents the proportion of Muslim prisoners in BOP facilities by at least 1000 percent. Many of the remaining prisoners have unpopular political views, including environmental activists designated as “ecoterrorists.”

When the Terre Haute unit opened in December 2006, 15 of the first 17 inmates were Muslim. AAlexis Agathocleous, a lawyer at the Center for Constitutional Rights:

“We were concerned about what appears to be racial profiling and also a pattern of designations to the CMUs of people who have spoken out at other prison units and advocated for their rights and have taken leadership positions in religious communities in those other prisons,” he says. They are segregated from other prisoners because officials worry that they could recruit other inmates for terrorism or direct people in the outside world to commit crimes.

Civil rights groups have filed lawsuits however that accuse the two U.S. facilities of some of the same due process complaints raised by people at Gitmo.Prison officials opened the first CMU with no public notice four years ago, something inmates say they had no right to do under the federal law known as the Administrative Procedures Act. Unlike prisoners who are convicted of serious crimes and sent to a federal supermax facility, CMU inmates have no way to review the evidence that sent them there or to challenge that evidence to get out. Also, as word got out that the special units were disproportionately Muslim,
civil rights lawyers say, the Bureau of Prisons started moving in
non-Muslims. According to CCR:

“Five CMU prisoners and two of their spouses (who, along with their children, have been subjected to draconian rules governing visitation and phone calls) have joined the lawsuit as plaintiffs. All five men confined in the CMU have been classified as low or medium security, but were designated to the CMU despite their relatively, and in two cases perfectly, clean disciplinary history. Not a single one has received discipline for any communications-related infraction within the last decade, nor any significant disciplinary offense.

Like all CMU prisoners, the men received no procedural protections related to their designation, and were not allowed to examine or refute the allegations that led to their transfer. They are also being held indefinitely at the CMU without any meaningful review process. They expect to serve their entire sentences in these isolated and punitive units.

Predictably, the lack of procedural protections has allowed for an unchecked pattern of discriminatory and retaliatory designations to the CMU. Rather than being related to a legitimate penological purpose or based on substantiated information, our clients’ designations were instead based on their religious and/or perceived political beliefs, or in retaliation for other protected First Amendment activity.

American University law professor Stephen Vladeck reviewed NPR’s findings. He says he has some questions about the secrecy surrounding the units and whether the prison is sending the right people there.

“I think the real question is, what are the constraints and how are we sure that the right people are being placed in these units and not the wrong ones?” Vladeck says.

“Mixing prisoners from different backgrounds who actually don’t necessarily live up to those criteria I think is troubling,” Vladeck adds, because it means some inmates might not belong there, and others who do belong may not be getting the attention they deserve.


US Supreme Court to Hear Material Witness Case Ashcroft vs. al-Kidd

The Supreme Court will hear arguments on March 2 in Mr. Kidd’s lawsuit against John Ashcroft, who was President George W. Bush’s first attorney general. It is this term’s only major national security case, and it will give the court an opportunity to weigh in on an issue that has divided Western democracies: when may the government detain citizens it is unable to charge with a crime for fear they may engage in terrorism?

Al-Kidd has sued John Ashcroft under the Fourth Amendment for Ashcroft’s policy of using the material witness statute for purposes of national security detention. Ashcroft has denied that the Fourth Amendment was violated, and he has raised both qualified and absolute immunity defenses against liability. The case therefore raises two basic issues: First, whether using the material witness statue for national security reasons violates the Fourth Amendment; and Second, whether Ashcroft has immunity against liability.

NYT article here.
SCOTUS analysis here.

UK draft detention of terrorist suspects (temporary extension) bill

The UK Home Secretary’s recent review of counter terrorism and security powers recommended a reduction in the maximum period of pre charge detention for terrorist suspects from 28 to 14 days. To deal with any exceptional circumstances the review also recommended the publication of draft emergency legislation which could be introduced where more than 14 days was considered necessary, which would temporarily increase the maximum period back to 28 days. Draft legislation was published on 11 February and is available to download here.

George Bush calls off trip to Switzerland amid fear of violence at demonstration… or an arrest warrant

The Guardian reports that George W Bush has had to call off a trip to Switzerland next weekend amid planned protests by human rights groups over the treatment of detainees at Guantánamo Bay and the threat of a warrant for his arrest. The visit would have been Bush’s first to Europe since he admitted in his autobiography, Decision Points, in November that he had authorised the use of waterboarding on detainees at Guantánamo accused of links with al-Qaida.

The Guardian:

“Whether out of concern over the protests or the arrest warrant, it is an extraordinary development for a former US president to have his travel plans curtailed in this way, and amounts to a victory for human rights campaigners.”

Amnesty International has published its memorandum to the Swiss authorities here.

1. Acts of torture (and, it may be noted, other cruel, inhuman or degrading treatment and enforced disappearance) were committed against detainees held in a secret detention and interrogation program operated by the USA’s Central Intelligence Agency (CIA) between 2002 and 2009.

2. The CIA established this secret program under the authorization of then-President George W. Bush.

3. Since leaving office, former President George W. Bush has said that he authorized the use of a number of “enhanced interrogation techniques” against detainees held in the secret CIA program. The former President specifically admitted to authorizing the “water-boarding” of identified individuals, whose subjection to this torture technique has been confirmed.

4. Additionally, torture and other ill-treatment, and secret detention, by US forces occurred outside the confines of the CIA-run secret detention program, including against detainees held in military custody at the US Naval Base at Guantánamo Bay in Cuba, and in the context of armed conflicts in Iraq and Afghanistan.

5. George W. Bush was Commander in Chief of all US armed forces at the relevant times.

6. The Administration of George W. Bush acted on the basis that he was essentially unrestrained by international or US law in determining the USA’s response to the attacks in the USA on 11 September 2001. Among other things, President Bush decided that the protections of the Geneva Conventions of 1949, including their common article 3, would not be applied to Taleban or al-Qa’ida detainees.

7. George W. Bush, as Commander in Chief at the relevant times, if he did not directly order or authorize such crimes, at least knew, or had reason to know, that US forces were about to commit or were committing such crimes and did not take all necessary and reasonable measures in his power as Commander in Chief and President to prevent their commission or, if the crimes had already been committed, ensure that all those who were alleged to be responsible for these crimes were brought to justice.

8. The USA has failed to conduct investigations capable of reaching former President George W. Bush, and all indications are that it will not do so, at least in the near future.

9. The facts summarized above, matters of public record, are sufficient to give rise to mandatory obligations on Switzerland under international law (including but not limited to the UN Convention against Torture), should former US President George W. Bush enter Swiss territory to:
· launch a criminal investigation;
· arrest former President Bush or otherwise secure his presence during that investigation; and
· submit the case to competent authorities in Switzerland for the purposes of prosecution if it does not extradite him to another state able and willing to do so.

EJIL Talk analyzes whether Bush is entitled to the immunity which, under international law, attaches to official acts of those who act on behalf of a State and prevents foreign prosecutions for those acts.